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

39
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.

40
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.

41
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

42
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.

43
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..

44
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.

45
BANKS AND BANKING-Officers The directors of a bank may appoint a trust commith:e, composed of directors, to act for it in trust matters.
September 25, 1946 Hon. Ellis ArRall Governor of Georgia
In your letter of September 16 you request me to reconsider my opmwn to you under date of August 30, 1946, in regard to the legality of the Savannah Bank and Trust Company's appointing a Trust Committe, composed of members of the Board of Directors, to pass upon various trust matters without referring them to the Board itself for action.
In my formE:r opinion I pointed out that the State Law Department, through Assistant Attorney General E. L. Reagan, under date of March 27, 1941, had held that the Board of Directors is without authority to delegate to a committee of its members the responsibilities of administering the Trust Department of the Bank. I advised you that it was contrary to the policy of the Attorney General to reverse an opinion of his predecessor, unless such an opinion is found to be clearly incorrect or the law has been changed.
After reconsidering the opinion of my predecessor's assistant in the light of the almost universal practice among banks of Georgia and other states, and particularly the national banks, I have concluded that Mr. Reagan's opinion is incorrect. My investigation discloses that the courts of our State have never passed on this specific question, and that there are no statutes specifically prohibiting the Board of Directors of a bank from delegating trust authority to a special trust committee selected from their membership.
Moreover, the State Superintende:nt of Bank;;, Mr. J. C. Beasley, has held as a matter of policy lhat since the national banks and other trust departments in State banks are operating through committees, the Banking Department has, in the past, left the determination of such procedure to the management of the banks.
In reviewing Assistant Attorney General Reagan'5 opinion of March 17, 1941, it is obvious that his conclusions were merely conjecture: as to what the appellate courts might hold nn the question.
I find that the charter of the Savannah Bank and Trust Company of Savannah provides for a Board of Directors, with power to enact all by-laws which may be deemed necessary and proper for the business of the company, that the Board may amend and repeal the same and may exercise all powers granted by the charte:r act; that it may confer on the president and other officers to be appointed such powers as may be deemed proper and consistent with the act. Thus it can be seen that the Bank's charter provides that the business of the Bank shall be carried on by its directors, with the power in the Board to appoint officers and agents as they deem necessary for the operation of the business of the Bank. In other words, under the charter, the Board of Directors has original and not de:legated authority, in the sense in which an agent or attorney E'Xercises such authority. It represents the stockholders directly and the creditors indirectly.
Section 2001, of Zollman on Banks and Banking, holds the view that: "Directors have powers to contract for the services of the bank officers,

46
divide the business of the bank into various departments and entrust to separate committees the supervision of the departmE:nts thus formed."
Fletcher's Cyclopedia of Corporations, Section 495, states: "According to the weight of authority, the directors or the Trustees of a private corporation may delegate to subordinate officers and agents the authority to act for and represent the corporation even in matters involving the exercise of judgment and discretion." In the case of Loud v. St. Louis Union Trust Co., 281 S."W. 744, the directors of the trust company were held to have power to delegate to a committee on trust estates general supervision of management, sales and disposal of s~ch estates and whose action would become binding without approval or further action of the Board of Directors. The court reached this conclusion despite the existence of a Missouri statute stating that the affairs and business of trust companies shall be managed by a Board of Directol1l, Courts of Texas, Michigan, New York and Missouri have been consistent in holding this view, which is consistent with the common law principle enunciated in the case of Social Security Board v. Warren, 142 F. 2d 974. The General Assembly of Georgia, in dealing with general corporations, provides, in Sec. 22-1867 of the Code, as follows:
"22-1867. Executive Committee. Unlass it shall be otherwise provided in the charter or an amendment th~:reof, the board of directors may by resolution designate two or more of their number to constitute an executive committee, who, to the extent provided in such resolution or in the bylaws of the corporation, shall kave and may exercise the powers of the board of directors in the management of the affairs and property o! the corporation and the exE:rcise of its corporate powers."
While this section refers specifically to general business corporations, it is convincing of the sentiment of the Legislature in reference to the appointment of special committees by boards of directors, to handle matters which could not otherwise be handled in the best interests of the business. It may even be said that the foregoing SE:ction applies to banks, since in Sec. 109-201 of the Code, wherein the powers of trust companies are enumerated under the statute, it is provided:
"All trust companies organized under this title are corporations possessed of the powers and functions of corporations generally."
Since the banks have all the powers vested in trust companies, it occurs to me that it would be well within the mark to hold that Sec, 22-1867 refers likE:wise to banks. In the case of Woodward v. Stewart, 149 Ga. 620, the Supreme Court held that:
"Whatever the rule is at common law or in other jurisdictions, the general rule in this State is that directors of a bank must exercise ordinary care and diligence in the administration of the affairs of the bank, and that the active management of the bank may be delegated to certain officers authorized to manage the business of the bank. A reasonable supervision of such officers, however, is incumbent upon the directors."
It is therefore my opinion that the conclusions reached by former Assistant Attorney General E. L. Reagan, March 17, 1941, are incorrect; and for that reason I am reversing his opinion and holding that the Board of

47
Directors of the Savannah Bank and Trust Company of Savannah, Georgia, has authority to appoint a trust committee, composed of members of the Board, which will have authority to pass on various trust matters without the necessity of referring each particular matter to the Board itself for action. It is my further opinion that the Board of Directors of the Bank is responsible for the acts of such a committee in dealing with trust estates.
BANKS AND BANKING-Small Loan Companies The Superintendent of Banks may examine small loah companies.
September 24, 1946 Hon. J. C. Beasley Superintendent of Banks
Your letter of September lOth received. You request that I give you an opinion on the authority of the State Banking Department to examine and regulate small loan companies.
Chapter 25-2 of the Code of 1933 deals with loans made on household or kitchen furniture, household goods, wearing apparel, sewing machines, musical instruments, wages or salariEs. Under this Chapter persons engaged in such business are required to receive from incorporated cities or towns a license to operate where the business is located in an incorporated city or town. If the business is located without the limits of an incorporated city or town, the license should be issued by the ordinary of the county.
Since the passage of the Small Loan Act in 1920 the business referred to in Chapter 25-2 should more appropriately be referred to as the business of loaning money on wages or salaries or buying wages or salaries. Persons loaning money on wages or salaries, or buying wages or salaries, are required to keep records and books, and such records and books must be open to inspection by the ordinary of the county, the grand jury of the county, o.r any person authorized in writing by the ordinary or grand jury.
Small loan business, or loans of $300 or less are regulated by an act of the General Assembly passed in 1920, as amended, which act is codified as Chapter 25-3 of the Code of 1933. Persons doing business as small loan companies are required to obtain a license from the Superintendent of Banks, and to post a bond with the Superintendent of Banks for the protection of the State and any person dealing with the company. This act had the effect of superseding the provisions of Chapter 25-2 in the regulation of loans made upon personal property, household goods, etc. See Stembridge, et al. v. Family Finance Company, 49 Ga. App. 353.
Section 25-9902 of the Code of 1933 makes it a misdemeanor for any person to operate as a small loan company without first obtaining a license from the Superintendent of Banks. It is also made a violation of the law for any person to violate Sections 25-313 and 25-317 of the Code of 1933, which regulates the amount of interest that a small loan company may charge on loans of $300 or less. Certain other requirements are set forth of small loan companies and where they fail to comply the failure is made a misdemeanor.
Under Section 25-310 of the Code the Superintendent of Banks, for the purpose of discovering violations of the chapter, may either personally or by

48
persons designated by him, investigate the loans and businesses of pusons making loans under the Small Loan Act. Conviction of persons for operating as a small loan company without a license and for charging usurious rates of interest have been upheld by the Court of Appeals. See Jarvis v. The S~ate, 69 Ga. App. 326.
Section 57-117 of the Code of 1933, in my opinion, would relate to persons overcharging the rate of interest where loans are made under Chapter 25-2. This section in substance provides that no pE::l'son shall charge or take for any loan or advance of money ar:y rate of interest greater than five per centum monthly. This section, however, does not apply to pawnbrokers. Section 57-9901 makes it a misdemeanor to violate the provisions of Section 57-117.
It is, therefore, my opinion that the Banking Department has the authority to require small loan companies to obtain a license from the Superintendent of Banks and to co11ply with the requirements of Chapter 25-3 of the Code. Finally the questien of whe:ther or not any person should be criminally prosecuted for violations of the laws connected with loan businesses is a matter to be determined by the Solicitor General and grand juries of the counties where the violation takes place.
BANKS AND BANKING-Stockholders A bank may not, by charter amendment, limit the vote of any one stockholder to 10 '7o of the total outstanding capital stock of the bank, regardless of the number of shares of stock outstanding in his name.
Septe:mber 9, 1947 Hon. 0. G. Jackson Superintendent of Banks
I have your letter of September 8, in which you request my opm10n as to the legality of Paragraph 6 A of an Application for Amendment of the Charter of the Baxley State Bank.
Under Code Section 13-1005, the Superintendent of Banks is required to examine applications for amendments to the charters of banks and to satisfy himself that such amendments are "proper and have been duly authorized by proper corporate action". It is, therefore, proper that you make a determination at this point as to the legality of the amendment.
The paragraph in question reads as follows: "Every stockholder of record of the Baxley State Bank shall be entitled at each meeting of stockholders thE:reof and upon each proposal presented at such meeting to vote one vote for each share of stock outstanding in his name on the records of said bank, provided however, that no one stockholder regardless of the amount of stock standing in his name on such records, or owned or controlled by him through proxies or otherwise shall be entitled to vote on any question or proposal at such meeting of stockholders more than t(:n per cent of the total outstanding capital stock of the Baxley State Bank." This amendment was approved by a vote of 217 shares of the 250 outstanding shares of the corporation. There are two basic questions involved:

49

(1) May less than all of the shareholders of a corporation pass such an

amendment?

(2) May all of the shareholders of a corporation, by unanimous vote,

pass such an amendment? Flet\::her Encyclopedia of the Law of Private Cor

porations, Vol. 7, Ch. 43, Sec. 3697.

"The right of a stockholder to participate in and vote at stockholders'

meetings inheres in his ownership of stock, and is one which cannot be im-

paired or taken away from him without his consent. An amendment of the

charter so as to have that effect has b~::en declared illegal."

See also 18 C. J. S. 1248, Sec. 549 which states:

"It has been held that the rights ... conferred on the individual stock-

holder to vote in proportion to the number of his shares is vital to him and

cannot be cut off or curtailed by the action of all the other stockholders,

even with the cooperation of the directors and officers."

It will be seen from the above that the limitation of the number of votes

of any one shareholdu, regardless of the number of shares he may own, is

an impairment of his right to vote and is, therefore, illegal.

The second question stated above is not actually presented here since all

of the shareholders did not pass the instant Application for Amendment. How-

ever, the question is pertinent and will be briefly discussed.

The Georgia Banking Law as contained in Title 13 of the Code s~::veral

times names specific percent:::ges of all outstanding stock as being necessary

to validate certain actions of banking corporations. For instance, Section

13-1101 requires: "A vote of two-thirds in amount of the entire capital stock of the bank.

,

for the passage of an application for renewal of a charter.

See also Code Sections 13-1002; 13-1402, and 13-J501.

As to these sp~::cific corporate acts, a method of voting such as is con-

tained in the paragraph in question would clearly be illegal.

As to the corporate activities not specifically mentioned by the Banking

Law, in the absence of a decision by the Georgia Appellate Courts, no

positive answer can be given. However, it would seem to be the intention of

the Legislature that voting of shares in banking corporations should be accom-

plishE:d by a numerical vote method rather than by a per capita of shareholders

method. Therefore, it is extremely doubtful if a unanimous application for

such an amendment as we have here could be considered in keeping with the

policy of the Banking Law.

BOUNDARIES, JURISDICTION AND TIME OF THE STATE-Jurisdiction The General Assembly may cede exclusive or qualified jurisdiction to the United States over lands acquired by the United States within the State.
September 18, 1945 Hon. J. M. Tinker Director, Department of Forestry
Your letter of September 5th received. Yoil request that I advise on the question of who has the authority to consent on behalf of the State to the acquisition of lands by the United States.

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Section 15-201 of the Code provides: "The sovereignty and jurisdiction of this State extend to all places within the limits of her boundaries, except so far as she has voluntarily ceded the same to the United States or adjacent States over particular localities." Under Paragraph 1, Section 1, Article 3 of the Constitution of 1945, the legislative powers of the State are vested in the General Assembly which constitutes the Senate and House of Representatives. Paragraph 17, Section 8, Article I of the Constitution of the United States (Section 1-125, Code of 1933) dealing with the powers of the Congress of the United States provides as follows: "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, becor.:~.e the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Ports, Magazines, Arsenals, dock-Yards, and other needful Buildings; . . ." This Section of the Federal Constitution gives to Congress the exclusive right of legislation over property or areas within the jurisdiction of the State where the consent of the Legislature of the State is given. In Benson v. The United States, 146 U. S. 325, 36 L. Ed. 91, the Court mid: "We also hold that it is competent for the legislature of the State to cede exclusive jurisdiction over places needed by the general government in the execution of its powers; the ;;se of the places being in fact as much for the use of the people of the State as for the people of the United States generally, and such juri diction necessarily ending when the places cease to be used for those purposes." The ruling in the Benson case, supra, was adhered to and followed in the case of The United States v. Battle, 154 F. 540 and by the Supreme Court in the same case in 209 U. S. 36, 52 L. Ed, 670. In line with the citation given above, it is my opinion that the only authority of the State which has power to consent to the acquisition of property within the State by the Federal Government so as to deprive the State vf jurisdiction over same is the General Assembly of the State. It is well settled that jurisdiction acquired from a State by the United States, whethe:r by consent to the purchase or cession, may be qualified in accordance with agreements reached by the respective governments. See Collins v. Yosemite Park and Curry Company, 304 U. S. 518, 82 L. Ed. 1502 and James v. Dravo Contracting Company, 302 U. S. 134, 82 L. Ed. 155. Under the authority granted by the Constitution the General Assembly of Georgia has relinquished rights over certain properties located in the State acquired by the United States Government for Post Offices and military needs. The General Assembly has retained concurrent jurisdiction with the United States insofar as civil and criminal process is con~erned where they have given consent for the purchase by the United States Government of lands for national forests, experiment stations, and wildlife sanctuaries. See Section 15-304, Cumulative Pocket Part, Code of 1933.

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BOUNDARIES, JURISDICTION AND TIME OF THE STATE-Jurisdiction The State Game and Fish Commission has no jurisdiction over violations of the State hunting and fishing laws which occur in the ChickamaugaChattanooga National Military Park.
July 27, 1946 Hon. Charles N. Elliott, Director State Game and Fish Commission
You request advice as to whether or not the Game and Fish Commission has jurisdiction over the premises of the Chickamauga-Chattl\nooga National Military Park, located just South of Chattanooga, for the purpose of checking fishing licenses and other violations of the fishing and hunting laws of this State.
Code Section 15-201 of the Georgia Code provides: "Extent of sovereignty and jurisdiction.-The sovereignty and jurisdiction of this State extend to all places within the limits of her boundaries, except so far as she has voluntarily ceded the same to the United States or adjacent States over particular localities." Therefore, in determining the question as to whether or not the State of Georgia retains jurisdiction over the Chickamauga-Chattanooga National Military Park for the purposes mentioned, it is pertinent to inquire as to the status of the property in quE:stion. It is necessary to find out under what authority the Federal Government obtained title to the property, and the conditions, if any, under which territorial jurisdiction was ceded by the State of Georgia to the Federal Government, and the extent of the jurisdiction ceded. The lands which are embraced within the Chickamauga-Chattanooga National Military Park and lying within the exterior limits of the State of Georgia, were acquired under the provisions of the Act of CongrE:ss approved August 19, 1890 and supplementary legislation. The Act provided for the establishment of the park "upon the ceding of jurisdiction by the Legislature of the State of Georgia." The lantls were acquired in 1891 and subsequent years. Some were acquired by purchase and some by condE:mnation. Consent was given and jurisdiction was ceded to the United States by an Act of the Legislature of the State of Georgia approved November 19, 1890 (Ga. L. 1890-91, Volume 1, p. 99). The Act specifically reserved to the State of Georgia criminal and civil jurisdiction in the ceded territory by the foliowing proviso: "provided, that this cession is upon thE: express condition that the State of Georgia shall so far retain a concurrent jurisdiction with the United States over said lands and roads as that all civil and criminal process issued under the authority of this State may be executed thereon in like manner as if this Act had not been passed; and upon the further express conditions, that the State shall retain its civil and criminal jurisdiction over persons and citizens in said ceded territory as over other persons and citizE:ns in the State, and the property of said citizens and residents thereon, except land and such other property as the general government may desire for its use, and that the property belonging to persons residing within said ceded territory shall be liable to State and county taxes, the samE: as if they resided elsewhere, and that citizens of this State in said ceded territory shall retain all 1ights of State suffrage and citizenship . ."

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Later acts of the Georgia Legislature, conveying additional tracts of land which now make up parts of the Chickamauga-Chattanooga National Military Park, contained identical provisions as that immediately above quoted, reserving criminal jurisdiction. There acts are found as follows: Ga. L. 1890, p.. 110; Ga. L. 1895, p. 77; Ga. L. 1901, p. 85; Ga. L. 1902, p. 110.
If the matter rested with these statutes, there would be no room for doubt that jurisdiction to punish for criminal acts committed on the lands within the park re:mained with the State of Georgia. See in this connection James v. Dravo Contracting Co., 302 U. S. 134, at pages 146-148. However, in 1927, another cession act of a general charact~r was passed by the Georgia Legislature, purporting to cede exclusive jurisdiction to the United States over :any land "which has been or may hereafter be acquired for custom houses, :post offices, arsenals, other public buildings, or for any other purposes of government." Ga. L. 1927, p. 352. This Act rese:rved to the State of Georgia the right to serve civil and criminal process within the park, but granted criminal jurisdiction of offenses committed within the park to the United States.
The argument was strongly presented in litigation that this last mentioned Act of the Georgia Legislature is a general act, a.nd as there is no expressed repeal of, or specific re:ference to, the earlier special acts relating to the lands within the park, it should not be regarded as yielding the jurisdiction which the earlier acts reserved to the State.
However, at the October 1938 Term, a case reached the United States Supreme Court involving the question as to whether or not the United States or the State of Georgia had jurisdiction over a murder committed within the boundariE:s of the Chickamauga-Chattanooga National Military Park. This decision controls the question now before us for determination. In this case, which was that of Bowen v. Johnston~ 306 U. S. 19, in an opinion delivered by Mr. Chief Justice Hughes, the Court ruled that the administrative construction -of the 1927 Act of the Georgia Legislature granted exclusive criminal jurisdiction by the State of Georgia to the United States. In this case the Court called attention to the fact that the administration of the park was placed with the War Department by the original Federal Act and was subsequently transferred to the National Parks Service, Department of the Interior, by Executive Ordtr No. 6166, dated June 10, 1933. See U.S.C.A., Title 5, pp. 124-132, Section 2, page 39. It appears from the War Department files that on July 14, 1930, upon a review of the pertinent legislation, the Judge Advocate General rendered an opinion that the Act of 1927 ''vests exclusive jurisdiction in the United States over that part of the Chickamauga-Chattanooga National Military Park located within the State of Georgia," and that violations of law occurring on the said lands are enforceable only by thE: proper authorities of the United States. The opinion by Mr. Chief Justice Hughes above referred to cited the above ruling and the Court finally held:
"Although in earlier acb consenting to acquisition and ceding jurisdiction over land for the park, criminal jurisdiction was specifically reserved by the State of Georgia, exclusive jurisdiction was ceded by the General Act of 1927." 'This same ruling was followed in a later case by the circuit Court of Appe:als, Ninth Circuit, on December 5, 1944, involving the same question. U. S. ex rei _Bowen v. Johnston, Warden, 58 F. Supp. 208.

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It is, therefore, my opmiOn, based upon the above cited authorities, that the Game and Fish Commission of the State of Georgia does not have jurisdiction over the premises of the Chickamauga-Chattanooga National Military Park for the purpose of checking fishing licenses and other violations of fishing and hunting laws which might occur on thE: premises of said park.
BOUNDARIES, JURISDICTION AND TIME OF THE STATE-Jurisdiction (1) The Federal Government has exclusive jurisdiction over the Marietta Army Air Field, and the State may not license the sale of beer thereat. (2) The State appropriations to the military fund may .not be m.ed by the Georgia National Guard to establish a canteen service for the sale of beer.
November 13, 1946 Ron. S. Marvin Griffin The Adjutant General
This acknowledges your lettE:r of November 5, requesting an opinion upon the following state of facts as set out in your letter:
"The Georgia National Guard has organized the 54th Fighter Wing Headquarters and other elements of the Wing at the Marietta Army Air Field. This field is the property of the Federal Government and certain facilities and improvements at thE: installation have been made available to the Military Department of the State of Georgia for the 54th Fighter Wing.
"Offices have been set up for Wing Headquarters in one of the large hangars on the field and regular army instructors have been assigned to duty at Wing Headquarters.
"In addition, a certain number of permanent duty personnel, salaries paid by the War Department, have been allottE:d to Wing Headquarters. A cafe for the convenience of this personnel has been opened at Headquarters.
"As Adjutant General, I would like to know if it is permissible for beer to be sold on this federal property for the convenience of the above personnel without the payment of a tax It is a federal installation maintained by fedHal funds and the salaries of the soldiers are paid from federal funds."
The property upon which the Georgia National Guard's 54th Fighter Wing Headquarters is located is federal property, having been acquired by purchase prior to 1944. The Secretary of War on May 12, 1944 advised the Governor of Georgia that under the provisions of Section 355, Rev. Stat. of United States, as amended by Act of February 1, 1940 (54 Stat. 19) and by Act of October 9, 1940 (54 Stat. 1083 40 U.S.C. 255) the United States accepted exclusive jurisdiction over all lands acquired by it for military purposes within the State of Georgia.
The sale of beer, intoxicating beverages and liquors, wines, etc., upon this federal property will, therefore, be controlled by fedual statute and section 1350 of Title 10 U.S.C.A. provides as follows:
"1350. Sale of intoxicating liquors.-The sale of or dealing in beer, wine or any intoxicating liquors by any person in any post exchange or canteen or Army transport or upon any premises usE:d for military purposes by the United States, is prohibited. The Secretary of War is hereby directed to carry the

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provisiOns of this section into full force and effect. (Feb. 2, 11l01, c. 192, 38, 31 Sta~. 758.)"
In view of the property in question being under exclusive federal jurisdiction, and the federal statute herein referred to prohibiting the sale of beer, wine and any intoxicating liquors on this prop~:rty, the State of Georgia has no right to issue permits, licenses or other authority for the sale of any such commodities, either with or w:thout payment of tax, upon property not under the jurisdiction of the State.
Moreover, the Georgia National Guard as an entity would not be authorized to buy and sell beer. Section 86-901 of the Code of Georgia Annotated provides:
"86-901. Military fund, use of, etc.-All moneys appropriated by the General Assembly for military or naval purposes shall continue and be kept in the treasury as a separate fund, to be known as the 'military fund.' All moneys placed in the military fund shall remain available for military purposes, and shall not be covered into the general fund of the treasury; and no part of said military fund shall be used for any purpose except as shall be authorized by law, and it shall be drawn from the treasury only on the warrant of the Governor, according to law.''
The language of this section clearly provides that all monies appropriated to the military fund shall be used for military purposes only and does not provide for the establishment of a canteen service, or other service through which the sale of beer could be carried on.
Furthermore, the State does not single out any part of its government, including the National Guard, and exempt it from paying a state-wide tax.
It is, in view of the foregoing, my opinion that the sale of beer and other intoxicating liquors, wines, etc., on the property described in your letter is
1. A question for federal authorities 2. With or without the payment of a tax not permissible to the Georgia National Guard.
BOUNDARIES, JURISDICTION AND TIME OF THE STATE-Time (1) Thanksgiving Day is the fourth Thursday in November. (2) Eastern Standard Times becomes official for the entire State when War Time terminate!!.
September 5, 1~45 Hon. Ellis Arnall Governor of Georgia
We are in receipt of a letter from Wilton E. Cobb, Radio Station WMAZ, Macon, Georgia, which was forwarded to this office by you, requesting information as to the provisions of law in Georgia covering Thanksgiving Day and the reversion of "time" when war time is abolished.
In order that this question may be fully answered, it is necessary that the historical background of Thanksgiving Day as a legal holiday be set forth. Origmally, Thanksgiving Day was appointed or recommended by the Governor or the President of the United States. This continued until 1943, at which time the General Assembly passed a statute setting the last

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Thursday in NovE:mber as Thanksgiving Day. This Georgia Thanksgiving Day conflicted with the Federal law which was passE:d by Congress after the late President Roosevelt proclaimed the third Thursday in November as Thanksgiving Day, the congressional enactment having set the fourth Thursday in November as Thanksgiving Day. Ordinarily, the fourth Thursday and the last Thursday in November are on the same date, but in 1944, shortly after the Georgia General Assembly had set the last Thursday in November as Thanksgiving Day, the last Thursday in November was a fifth Thursday and, therefore, the hiatus of a different Thanksgiving, Federal and State, resulted.
In 1945 thE: General Assembly changed this by providing that the fourth Thursday in November is Thanksgiving Day, which is the same day as that set by the Federal statute.
In regard to the reversion of "time" in the State of Georgia, the General Assembly passed an Act in 1943, after Congress had amended the time law, moving the clocks forward one hour and calling the change "war time" for the different time zones in the United StatE:s, providing that there should be no other standard time withir: the State of Georgia except Central Standard Time until the amendment of January 20, 1942, passed by Congress setting up war time had ceas~d to be effective, at which time the State would revert to Eastern Standard Time. In other words, Central War Time is the same as Eastern Standard Time, and it was the purpose of the General Assembly to provide the same time during the war within Georgia as would be in effect after the war time had been removed and the clocks turned back one hour.
Some of the territory in Eastern Georgia did not turn their clocks back in conformity with the 1943 Act of the General Assembly and have, therefore, been on Eastern War Time rather than on Central War Time. Consequently, at the end of the war East Georgia will go back an hour to Eastern Standard Time, but Central and West Georgia will merely. change from Central War Time to Eastern Standard Time, which are the same.
In order to answer your question as to when the reversion of time will take place, let us look at the Federal Act amending the time zones within the United States, reading as follows:
"Sec. 2. This Act shall cease to be in effect six months after the termination of the present war or at such earlier date as the Congress shall by concurrent resolution designatE', and at 2 o'clock antemeridian of the last Sunday in the calendar month following the calendar month during which this Act ceases to be in effect the standard time of each zone shall be returned to the mean astronomical time of the degree of longitude governing the standard time for such zone as provided in such Act of March 19, 1918, as amended."
From the above, it will be seen that six months after the President proclaims the termination of the war, or sooner if Congress shall by concurrent rE:solution designate a date for the return from war time to standard time, then the Act of 1943 of the General Assembly will be effective again and the time for all of Georgia will bE: Eastern Standard Time rather than Central War Time.

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BOUNDARIES, JURISDICTION AND TIME OF THE STATE-Time (Unofficial)
A municipal corporation may not, by ordinance, adopt a time other than Eastern Standard Time for legal purposes.
April 16, 1946 Savannah World Publishing Company P. 0. Box 671 Savannah, Georgia
I am pleased to acknowledge your letter of recent date asking my opmwn as to the legality of the proposed ordinance of the City of Savannah adopting daylight-saving time for the ~ummer months.
By the Act of 1941 (Ga. L. 1941, p. 427), the General Assembly provided that there "shall be no other standard time within the State of Georgia except Eastern Standard Time."
The act approved January 18, 1943 (Ga. L. 1943, p. 430), placing the State of Georgia on Central Standard Time and temporarily suspending the operation of the Act of 1941, is no longer effective since by its terms it was to be in effect only until "War Time" ceased to be effective. When "War Time" ceased to be in effect, the Act of 1941 was again placed in operation.
There does not seem to be any reported Georgia decision dealing with the right of a municipality to enact an ordinance establishing daylight saving time, and there have been very few decisions on the subject in other jurisdictions.
In the State of Pennsylvania a law was passed designating Eastern Standard Time as the time to be observed for legal purposes in Pennsylvania. In the face of this statute, the City of Pittsburgh adopted an ordinance providing for the observance of daylight-saving time during the summer months. In the case of Smith v. Pittsburgh, 30 Pa; Dist. R. 454, it was sought to enjoin the operation of this ordinance. The court denied the relief sought because it did not appear that the city was about to take any action to enforce the ordinance. In the opinion the court said
"An ordinance of a city fixing a legal time is of no legal effect whatever since the legislature ... designated eastern standard time as that to be observed for legal purposes in Pennsylvania. . . There is nothing unlawful or in violation of the act of the assembly fixing the standard time for any individual or institution or the public generally to move back their activities one hour and to set their clocks forward accordingly. wherever, however, any specific hour of the day is fixed for the performance of any legal duty, it must, of course, be taken to be eastern standard tim0."
In another Pennsylvania case, Loeb v. Romano, 14 Pa. D. & C. 53, a defendant had received a summons to answer a suit in court at 10 o'clock on a certain morning;. The community in which the court was sitting was operating on daylight-saving time, and when the defendant failed to appear at 10 o'clock eastern daylight-saving time, a default judgment was entered against him. Because the defendant had appeared to answer the suit by 10 o'clock eastern standard time ( 11 o'clock daylight-saving time), the default judgment of the lower court was set aside.
In the case of State ex. rei. Cist v. Cincinnati, 101 Ohio St. 354, 129 N.E. 595, a city ordinance providing for daylight-saving time was held valid under

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the home rule amendment of the State Constitution although the ordinance violated a state law establishing a standard time for that state. However, in the opinion the court said:
"It must be conceded th::tt the standard of time prescribed by the law of the State governs and controls as to all matte:rs except those having to do solely with local government action and procedure."
We are inclined to the view that by declaring that thE:re "shall be no other standard time within the State of Georgia except Eastern Standard Time," the Act of 1941, for all legal intents and purposes, established Eastern Standard Time as the official time for all Georgia; and that a city could not adopt a valid ordinance establishing a different time for legal purposes. As pointed out in the case of Smith v. Pittsburgh, supra, a city ordinance fL!dng a legal time at variance with the legal time as fixed by state law is of no legal effect whatever. However, as pointed out in that case, "there is nothing unlawful or in violation of the assembly fixing the standard time for any individual or institution or the public generally to move back their activities one hour and to set their clocks forward accordingly."
CORONERS-Inquests (Unofficial) Duties and fees in connection with inquests.
January 29, 1946 Hon. Guy Moss Coroner, Lincoln County Lincolnton, Georgia
This will acknowledge your letter dated January 14, in which you request certain information with respect to your duties and costs in inquest matters.
fhe general law of this State with respect to the duties and fees of coroners is set out in Chapters 21-1 and 21-2 of the Georgia Code of 1933. These chapters of the Code are binding upon the coroner of your county unless some change has been made by a general law of local application, applicable to your county, which I have been unable to find in the Acts of the General Assembly. The following paragraphs are numbered to conform to the specific questions which you ask in your letter.
(1) Please advise what jurors in inquest cases get in my county? Section 21-209 of the Georgia Code of 1933 provides, in part:
"The jurors sworn and empaneled upon an inquest shall be paid $1.00 each for their services as jurors upon each inquest, and it shall be the duty of the coroner, or other perRon discharging the duties of coroner, to give a certificate of the fact of such service to each juror; upon presentation of which to the proper county authority of the county in which the inquest is held, he shall give the claim?.nt an order on the Treasurer for the same."
(2) What is my own f<.'e in such cases? Section 21-105 of the Code provides:
"Coroners' fees shall be as follows, to wit: summoning an inquest on a dead body and returning an inquisition, $10.00; furnishing coffin and burial expensGs, $15.00; when perf0rming the duties of a sheriff, his fees are the same as a sheriff's. No coroner shall receive out of the county Treasury more

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than $1,500.00 per annum, either as fees for holding inquests or for burying the dead."
In the case of Davis v. County of Bibb, 116 Ga. 23, a coroner sued the county for services rendered by him in connection with the holding of certain inquests, claiming $49.00 for his services in summoning juries to 49 inquests he had held. The court referred to that section of the Code (now Section 21-205) which entitled the coroner to a fee of ~10.00 for summoning an inquest on a dead body and returning an inquisition, and held that the fee so fixed by that Code Section was the coroner's entire compensation for all services rendered by him in and about an inquest. The court said:
"When a constable summons a jury of inquest, he is entitled to a fee o:f $1.00 (Penal Code, Section 1111 [now Section 24-820]), but there is no authority under our statutes for a coroner to charge the county a separate fee for such services."
(3) Does the sheriff in my county summon a jury and get a fee, or is this a duty of the coroner? Am I authorized to list a sheriff's fee in connection with such a fee? What is his fee? It is the duty of the coroner to summon the jury for an inquest. Section 21-209 of the Code provides, in part:
"The coroner shall summon and empanel six jurors to hold an inquest, and the majority vote shall decide the verdict."
I have been unable to find any statute which would authorize you to list a sheriff's fee in connection with summoning a jury for an inquest. In the case of Davis v. County of Bibb, cited above, the point was raised that the language of Section 21-105 of the Code, which provides that a coroner, ''when performing the duties of a sheriff", shall receive the same fees as a sheriff, entitled a coroner to compensation for summoning a jury to inquest. The court, in deciding against that contention; pointed out that there is no law which makes it one of the duties of a sheriff to summon a jury of inquest. Accordingly, if the sheriff had no duty in that connection, he would not be entitled to a fee.
(4) Is a physician necessary in such a case? If so, what is his fee? Section 21-214 of the Code provides:
"If the verdict of the jury suggests that the death was caused by poison, the coroner shall have power to cause an accurate examination of the viscera and the contents of the stomach and intestines by skillful chemists; and the reasonable expenses of such examination shall be paid out of the county Treasury. In any case, if the coroner and the majority of the jury believe that the ends of justice can only be obtained by a thorough post mortem examination, the coroner may employ a competent and impartial physician to make such examination; and the physician so employed shall be paid out of the county Treasury such sum, not exceeding $20.00, as may be agreed to by the co~oner and jury."
It appears from the foregoing that a physician is necessary only if the coroner and the majority of the jury believe that the ends of justice require a thorough post mortem examination. In such case, the physician's fee would be such sum, not exceeding $20.00, as the coroner and jury agree on..
(5) Am I supposed to have an inquest unless there is suspicion of a crime

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or foul play'? This question is answered by Sections 21-202 and 21-203 of the Code. Section 21-202 provides, in part:
"Coroners shall take inquest over dead bodks in their respective counties as follows: 1. Of all violent, sudden, or casual deaths, when there are no eyewitnesses to the killing or C'lUse of the death, and such death occurs under suspicious circumstances. 2. Of all sudden deaths in prison without an attending physician. 3. Of all dead bodies found, whether of persons known or unknown, when it is apparent from the body that violence caused the death, or when the puson died or disappeared under suspicious circumstances. 4. Whenever ordered by a court havir.g criminal jurisdiction."
Section 21-203 provides: "No inquest shall be held over any dead body when the cause of the death was violence, or accident, or act of God, in the presence of witnesses, unless some person makes affidavit of facts raising suspicion of foul play, when an inquest shall be had, but at the expense of the party making the affidavit. Upon such inquest, if it should appE:ar that the death was caused by violence and foul play, and the person guilty of the act is arrested, the person paying the cost of the inquest, shall be repaid by the county treasurer upon an order from the Judge of the Superior Court of the county." (6) If an individual requests an inquest, at whose expense or cost is it held'? If the inquest is held for one of the reasons set out in Section 21-202 of the Code, it would be at thE: expense of the county, even though it were requested by an individual, fo1 that Section makes it the duty of the coroner to hold an inquest, whether requested or not. However, if an inquest has been held in accordance with that Section, and a person is convicted of murder or manslaughter for slaying the person over whose body the inquE:st was held, the costs of the inquest are a part of the cost of conviction, and are to be charged as such (See Code Section 27-2803); but if the cause of death was violence or accident or act of God in the presence of witnesses, when no inquest is required, but one is requested by a pE:rson who makes an affidavit of facts raising a suspicion of foul play, then that inquest would be at the expense of the party making the affidavit; but such person would be entitled to repayment by the county treasury upon an order from the Judge of the Superior Court of the county, if upon the inquest, it appeared that the death was caused by violence and foul play and the person guilty of the act is arrested (CodE: Section 21-203).
COUNTIES-Agents (Unofficial) A county employing an agricultural agent and home demonstration agent is not required to pay the State unemployment compensation tax but is required to contribute to the teachers retirement fund.
August 26, 1946 Hon. C. T. Williford, Clerk Board of Commissioners of Jtoads and Revenues Newton, Georgia
Your letter of August 22nd recE:ived. You request that I advise whether or not a county is required to withhold the social security ta'x or any other

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tax on account of the employment of the county agent and the county home demonstration agent.
The social security tax to which I think you refer is levied under and by virtue of the Unemployment Compensation Act of 1937, Chapter 54-6, 1945 Cumulative Pocket Part of Annotated Code. Under Paragraph (g) of Section 54-657 of the Cumulative Pocket Part of the Code it is provided that the term "employment" shall not include services performed in the employ of a State or any political subdivision thereof. I am of the private opinion that a county, which is a political subdivision of the State, is not required to pay the social security tax as collected under said Act on account of persons employed by the county.
In 1943, (Ga. L. 1943, pp. 401-402) the Workmen's Compensation law was amended so as to include the State of Georgia and its political divisions as an employer. Under the Act a county is an employer and could come under the provisions of the Act. The Supreme Court in the case of Kelly v. County of Newton, 198 Ga. 483, held that so much of the Act of 1943 as requires the counties of the State to pay employees compeilsation for injuries violated Article 7, Section 6, Paragraph 2 of the Constitution of 1877. Since that time the Constitution of 1945 was adopted. Paragraph 1, Section 4, Article 7 of the Constitution of 1945 provides that the General Assembly shall not have power to delegate to any county the right to levy tax for any purpose except (naming a number of purposes):
"15. To provide for wo-rkmen's compensation and retirement or pension funds for officers and employees."
This constitutional provision put into force ;m enabling act, Act No. 635, approved January 30, 1946.
Paragraph 3, Section 1, Article 12 of the Constitution of 1945 provides that laws of force at the time of the adoption of the Constitution, not inconsistent with the Constitution, shall remain of force until the same are modified or repealed by the General Assembly.
I am not passing upon the question of whether or not an act which has been declared to be unconstitutional is revived by the Constitution of 1945 which authorizes the county to levy a tax to pay compensation for injuries. This would be a question which should be determined by your county attorney.
I am of the opinion that under the Teacher Retirement Act, (Ga. L. 1943, pp. 640-644) as codified in the 1945 Cumulative Pocket Part of Annotated Code, under Section 32-2901, the county agent and the home demonstration agent would be classified as tPachers, and where the county pays a part of the salary of the two that they would be required to make contributions to the teacher retirement fund as provided by the Act. The constitutional provision quoted above, in my opinion, would authorize the levy of a tax to provide retirement or pension fund for such employees.

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COUNTIES-Commissioners (Unofficial) The 1945 Constitution did not abrogate the right of county commissionel'S to create, change and abolish election precincts.
March 1, 1946 Judge A. R. Ross Eastman, Georgia
The question raised in your let~r of February 25, is whether the Constitution of 1945 abrogates Section 23-701 of the Code and the Act of 1912, page 367 et. seq.
In order to dttermine the question as to whether under the Constitution of 1945 the commissioners of Roads and Revenue can change, abolish, or consolidate election precincts, it is necessary for us 1.o go back to the prior Constitutions of Georgia and see if these Constitutions contain the same provision as contained in Article 3, Section 7, paragraph 27 of the Constitution of 1945.
I have found that the same provision as cited, supra, appears in the Constitution of 1868 and the Constitution of 1877. The language with respect to "making or changing election prEcincts" appeared in the Constitution of 1868 and in the Constitution of 1877. The Constitution of 1877 was amended on November 5, 1912, but the amendment did not change the language contained in said article and sa1d section and said paragraph with respect to making or changing election precincts.
FormE:rly the ordinaries of the counties exercised the same powers as the tommissioners of Roads and Revenue now exercise, that is, when they were sitting for county matters as defined in Code Section 23-701 of the Code of 1933. As stated in your letter, the Acts of 1912, supra, transferred the authority of the ordinaries as provided in Section 23-701 to the Commissioners of Roads and Revenues.
The matter before us here is whethE:r the Commissioners of Roads and Revenue of Dodge County have authority to change, abolish, or create election precincts.
In the case of Crawford et.al v. Glasglow, 86 Ga. 358, the court had before it the question of whether the ordinary of a county had authority to change, abolish, or create election precincts and militia districts. Judge Blanford, speaking for the court, undertook to trace the history of the constitutional provision as contained in the Constitution of 1868 which conferred upon the ordinaries of the several countiE:s of this State the right to exercise all the powers as to county matters which had theretofore been exercised by the justices of the inferior courts. He cites Code Section 337 which is Code Section 23-701 of the Code 0f 1933. One of the things that the ordinaries could do was to establish, change, or create elE:ction precincts and militia districts. It seems that the ordinary of Bartow County under the Act of 1874 was no longer able to exercise any authority whE:n sitting for county matters, but that such authority under said Act was transferred to a Board of Commissioners. In defining the rights and duties of the Board of Commissioners under the special Act of 1874, the special Act did not give the county Board of Commissioners the right to change, abolish, or to create militia districts, but did then authorize them to change, abolish, or to create election precincts. The court in this respect held

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"The power to establish and change election precincts is distinctly given to the commissioners without conferring the power of establishing or changing militia districts. Hence, we think under this Act, the Board of Commissioners of Bartow. County had no power or authority to establish or change any of the militia districts of Bartow County. The maxim inclusio unius est exclusio alterius applies to this case."
It is clear from the ruling in the Crawford case, supra, that had the special Act of 1874 which conferred the authority to establish and change election precincts also conferred the authority to change and establish militia districts, the court would have ruled that this Act did not violate the Section of the Code of the constitution of 1868 in the following language:
"The General Assembly shall have no power to grant corporate powers and privileges to private companies, to make or change election precincts ... but it shall prescribe by law the manner in which such powers shall be exercised by the courts."
You will note that they use the language "shall be exercised by the courts." Is not the commissioner of Roads and Revenue of Dodge County when exercising his power to change or create an election precinct a court? I think clearly it would be a court, and therefore the legislature has already prescribed by law the manner in which election precincts may be changed or created, Under the Code of 1865 by the adoption of Code Section 337, it conferred this authority upon the ordinaries. Is not an ordinary of a county a court? The legislature did not change the effect of this when it created a Board of Commissioners of Roads and Revenue for counties and conferred upon these Boards the same powus formerly exercised by the ordinary when the ordinary was sitting for county matters. So, it is evident that the provision of thP. Constitution of 1945, supra, did not abrogate any power formerly conferred upon the ordinaries of the counties and thence by the Act of .1912 upon the county commissioners with respect to establishing and changing election precincts.
The Crawford case, supra, clearly holds that the Board of Commissioners of Bartow County under the special Act of 1874 which in effect did the same thing for Bartow County as the Act of 1912 did for all the counties was constitutional and did not conflict with the provision contained in the Constitution of 1868. I feel quite confident that a similar ruling would be made by the Supreme Court of Georgia today if the question were properly presentE:d to them.
I am, therefore, constrained to rule that the 1945 provision of the Constitution with respect to making or changing election precincts did not repeal the Acts of the General Assembly of 1912, page 367, et. seq. and that the commissioner of Roads and Revenue of Dodge County now has authority to make or change election precincts.

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COUNTIES--Commissioners (Unofficial) An act creating a board of commissioners of roads and revenues for a county which does not have one need not provide for the election of its members by the people although election is the bE:tter practice.
December 5, 1946
Ron. Ben F. Cheek Representative, Franklin County Lavonia, Georgia
Your letter of November 25th received. You request that I advise whether or not, under the Constitution, it is necessary to provide in an Act creating a Board of Commissioners of Roads and Revenues for a county which does not at the prE:sent time have a Board of Commissioners for the election of the members of such new Board by the people, and whether or not it would require a majority vote of the qualified voters to elect memben of such a Board.
Paragraph 15, Section 7, Article 3 of the Constitution provides in part as follows:
"Where any local law shall add any member or members to any municipal or county governing authority, the members of which are elected by the people, such local law must provide that the member or members so added must be elected by a majority vote of the qualified voters of the political sub-division affected."
Where the county does not have a Board of Commissioners, the county affairs are handled by the Ordinary. The creation of a Board of Commissioners for such a county would not be adding additional officers to the office of Ordinary which is a separate office and which handles matters other than county affair&. The Act creating a new Board of Commissioners to handle county affairs would have the effect of transferring a part of the duties from the Ordinary to a new office.
Paragraph 1, Section 17, Article 6 of the Constitution gives the GE:neral Assembly power to provide for the creation of county commissioners. County Commissioners are county officers. See Malone v. Minchew, 170 Ga. 687.
The rule of uniformity of tribunals or officers created for handling county matters are dispensed with where county commissioners are created to handle county matters by Paragraph 6, Section 1, Article 11 of the Constitution. In applying this provision of the Constitution, the Supreme Court of Georgia held in the case of Wilson, et al. v. Harris, 170 Ga. 800; that it was within the power of the General Assembly to provide for the tlection of members of the Board by the Grand Jury of the county.
Paragraph 1, Section 11, Article 11 of the Constitution provides that county officers shall be elected by the people. HowevE:r, under the constitutional provision dispensing with uniformity in Boards of Commissioners, and under the ruling of the Supreme Court in Wilson et al. v. Harris, supra, I am of the opinion that the provision of the Constitution requiring county officers to be elected by the people does not apply to Boards of County Commissioners.
I would suggest, however, that it may be the better practice to provide in the bill creating a Board of Commissioners for the election of members of such a Board by the people. I make this suggestion for if such a provision is in-

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eluded in the Bill, it would not leave open the constitutional questions for litigation.
I am of the opinion that the provision of the Constitution quoted from paragraph 15, section 7, ArticlE: 3 does not apply where the county affairs are being handled by the Ordinary and an Act is passed to create a new Board for the handling of county affairs. Where at present county affairs are handled by the Ordinary and an Act is passed creating a new Board of Commissioners and providing for the election of the members by the people, a candidate for such an office who received the highest vote in an election would, in my opinion, be electe:d to the office. I am of the further opinion that under the quoted provisions of the Constitution if a county has at the present time a Board of Commissioners who handle county affairs, and an Act is passed adding new members to the Board, the bill should provide for the election of the members so added and that members added should be elected by a majority vote of the qualified voters of a county.
COUNTIES-Consolidation (Unofficial) The procedure for the consolidation of countie:s was changed by the 1945 Constitution.
September 20, 1945. Hon. Marvin A. Allison Attorney at Law Lawrenceville, Georgia
Your letter raises a very interesting question. The Constitution of 1877, before the amendment was passed which is generally known as "the New Constitution," in regard to the change of county lines, contains thE: following (Code Section 2-8204):
"Change of county lines. County lines shall not be changed, unless under the operation of a general law for that purpose."
The New Constitution contains the same provision, but there appear to be several changes made in Article 11, Section 1, of the new Constitution. In regard to the consolidation of countie:s, the dissolution of counties, etc., Article 11, Section 1, Paragraph 4, of the New Constitution, provides a method of consolidation of counties, as follows:
"The General Assembly shall have power, with the concurrence of twothirds of the qualified voters of each of the counties to be affected who participate in elections held for that purpose, to provide for the consolidation of two or more counties into one, or the merger of one or more countie:s into another, or the division of a county, and the merger of portions thereof into other counties."
It is my opinion that this is the law, now in force and which has been in force since the proclamation of the Governor. It is therefore my opinion that, although you have already started your proceedings under the old Constitution, your best procedure would be to abandon same, and start your proceeding all over again under the law as contained in the New Constitution approved August 7, 1945, 8y the people and later proclaimed by the Governor to be of full force and effect.

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COUNTIES-Hospital Authority (Unofficial) The State has no jurisdiction over a County Hospital Authority :xcept that the State Auditor prescribes the forms for its annual report.
November 30, 1945 Ron. Robert Hughes Dawson, Georgia.
I am pleased to acknowledge your letter of November 28th, in which you state the following:
"It is the intention of the Board of Commissioners of Roads and Revenues to establish a Hospital Authority for Tenell County under th~ Hospital Authorities Act of 1941. I shall thank you to advise me what State agency or governing body has the jurisdiction over the local authorities."
The Act creating the Hospital Authority approved March 27, 1941 (Ga. L. 1941, pp. 241-250) provides that the Hospital Authority of such county and municipal corporation shall consist of a Board of not less than five, nor more than nine trustE:es, to be appointed by a governing body of such county or municipal corporation. Section 5 of the Act provides in part:
"Every Authority shall be deemed to exercise public and essential governmental functions and shall have all of the powers necessary or convenient to carry out and effectuate the purposes and provisions of this Act.... "
The above statute does not require or provide for the "Hospital Authority" to be placed under the jurisdiction of a State agency. The only jurisdiction exercised by the State over the Hospital Authority is found in Section 14 of the Act which provides in part as follows:
"The board of trustees of each Authority created hereunder shall file an annual report on forms prescribed by the State Auditor with the governing body or bodies of political subdivisions or participating units of the activities of the Authority for the years and shall annually consider and adopt as a part of such report a budget, which budget shall be filed with the annual report.... "
The State Auditor, under the provisions of Section 14 above set forth, is the only State office or State agency exercising jurisdiction over the local Hospital Authority, and the jurisdiction of the State Auditor is limited to the provisions set forth in Section 14 above referred to.
COUNTIES-Name (Unofficial) A county name may be changed by statute.
December 10, 1945 Ron. L. H. Oden Member, General Assembly Blackshear, Georgia
Your lettE:r of December 3rd received. You requested that I advise how one should proceed to change the name of a county.
I have checked the Constitution and have been unable to find any procedure set out by the Constitution or statutes for changing the name of a county. I find that the General Assembly by an Act approved December 6, 1861 (Ga. L. 1861, p. 101) changed the name of Cass County to Bartow County. The Act recit:d the reason for the change and then in its enacting provision changed the name.

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Code Section 23-101 of the Code of 1933 gives the names of each of the counties of the State. I think that this Section could be amended by a general act so as to change the name of the County of Pierce.
COUNTIES-Officers (Unofficial) The salary of an elective county officer may not be changed during his term of office, but the fees provided for an elective county officer may be changed or supplemented with a salary during his term.
December 15, 1945
Hon. Lowell Mallard Representative, Bulloch Count;\' Statesboro, Georgia
During my absence from the office while in Washington in connection with the freight rate case, one of my assistants, R. A. McGraw, answered your telegram requesting an opinion as to whether or not the salary of elective county officers could be changed during their term of office by an Act of the General Assembly. The telegram was answered by wire, and stated unofficially that it was his opinion that the salary of county officers could be changed unless there was a provision in some local act prohibiting the change. He stated that a letter would follow.
On my return to the office, the assistant called my attention to Paragraph 1, Section 11 of Article 3 of the Constitution of 1945, which Paragraph is as follows:
"The General Assembly may, at any time, by a majority vote of both branches prescribe other and different salaries for all of the elective officers provided for in this Constitution, hut no such change shall affect the officers then in commission."
He states that he construed this section of the Constitution with the provision of the 1945 Constitution contained in Paragraph 2, Section 2 of Article 11, which is as follows:
"County officers may be on a fee basis, salary basis, or fee basis supplemented by salary, in such manner as may be directed by law."
While Paragraph 1 of Section 11 of Article 3 provides that the General Assembly may prescribe other and different salaries for all elective officers provided for in this Constitution, but that no change shall affect the officers then in commission, Paragraph 2 of Section 2 of Article 11 provides that county officers may be on a fee basis, salary basis or fee basis supplemented by salary in the manner directed by law. Generally, throughout the State, all county officers are paid for their services on a fee basis. There is a difference in fees paid as compensation for services rendered and a salary. The fees are paid only when the services are actually rendered. A salary attaches to an office and the officer is entitled thereto whether or not he performs the duties of his office. If the officer fails to perform the duties of his office, he could be made subject to a writ of mandamus to enforce the performance of his duties.
This distinction seems to be drawn by the Supreme Court in Tucker v. Shoemaker, 149 Ga. 250, and MacNeill v. Howard, 185 Ga. 85. The distinction is made by decisions of many other courts throughout the country. These

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decisions are annotated on pages 38-49, Permanent Edition of Words and Phrases. The provision of the Constitution which provides that county officers may be on both fee basis and salary basis appear:; as a last part of the Constitution, and in my opinion it was the intention of the General Assembly in drafting same, and of the people in adopting it, to permit the General Assembly to change fees paid county officers as compE:nsation for services rendered, and to supplement the fees with other or different fees or with a salary to be paid from the county treasury, and that such changed fees, additional fees or additional salary would be recoverable by an officer even though passed during his elective term. I am of the opinion however, that if the officer is onE: who has already been placed on a strict salary basis, without any fees, under the provision of Paragraph 1 of Section 1 of Article 3, his salary could not be changed during the term of office for which he was elected.
You must understand of course that this question has not been determinE:d by the Supreme Court, and that the court might see fit to place a different construction upon same.
COUNTIES-Officers (Unofficial) County commissioners, in the absence of statute, may not supplement with a salary the compensation of county officers who are on a fee basis.
February 28, 1946
Hon. B. F. Whittemore Ordinary, Gordon County
You request an opinion with respect to whether Article 11, Section 2, Paragraph 2 of the Constitution of 1945 authorizes a county commissioner, without special permission from the grand jury or from the General Assembly, to supplement, with a salary, county officers who are on a fee basis.
The Paragraph of the Constitution to which you refer provides as follows: "County officers may be on a fee basis, salary basis, or a fee basis supplemented by a salary as may be directed by law." (Emphasis supplied). It is apparent tnat the mentioned provision of the Constitution was not intende,d to be self executing as it does not specify who shall have the authority to execute its provisions, nor does it undertake to fix any limits on the amounts which may be paid. It specifically states that the basis upon which county officers may be paid shall be "as may be directed by law." This phrase in itself would indicate that authority to carry out the provisions of the Paragraph is to be found elsewhere than in the Paragraph itself. In the case of Southern Bell Telephone Company v. Beach, 8 Ga. App. 720, the court stated that it is the general rule of construction that where an Act of the General Assembly refers to the laws of its own State the expression will be held to rE:fer to statute law, and quoted with approval the case of Brinckerhoff v. Bostwick, 99 N. Y. 185, in which it was held that expressions in statutes such as "required by law," "prescribed by law," "regulated by law," etc., refer to statutory provisions only. See also Cooney v. Foote, 142 Ga. 647, in which it was pointed out that the Constitution of this State in several provisions uses the word "law" with reference to statutes of the General Assembly.

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The same general rules of construction apply in interpreting a constitutional provision as in interpreting a statute. Park v. Candler, 114 Ga. 446.
It seems apparent, then, that the constitutional provision referred to was not intended of itsE:lf to authorize the county commissioner, or other county authority, to supplement the salary of county officers who are on the fee basis where there is no Act of the General Assembly authorizing such a supplement. This view is supported by the rule announced by the Supreme Court of this State in the case of Walker v. Sheftall, 73 Ga. 806, to the effect that Acts providing for costs and salaries are to be strictly construed and neither can be increased by construction or in any indirect manner beyond the amounts spE:cified by law. See also Walton County v. Dean, 23 Ga. App. 97, McAlpin v. Chatham County, 26 Ga,. App, 695.
It is impossible, of course, at this time to determine the right of the county commissioner of your county to supplement with a salary and specific county officer who is on the fee basis without knowing the particular office involved as it would be necessary to examine the Acts of the General Assembly with respect to that office.
COUNTIES-Officers (Unofficial) An elective county officer may also hold a municipal office unless pro-
hibited by municipal charter.
October 14, 1946 Hon. Nesbit Baker Louisville, Georgia
Your letter of October 7th received. You request my unofficial opinion on two quE:stions. The questions will be stated ;tnd answer given as stated in your letter.
1. Under the Georgia law, can a citizen hold a job as a county officer, elected by the people, and then hold a municipal office elected by the people, these two jobs to be held concurrently?
Answer: Section 89-101 of the Code provides in part as follows: "The following persons are held and deemed ineligible to hold any civil office, and the existence of any of the following states of facts shall be a sufficient rE:ason for vacating any office held by such person, but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto, namely: 4. Persons holding any office of profit or trust under the Government of the United States (other than that of postmaster and officers of the Reserve Corps of the United States Army, Navy or Marine Corps), or of either of th~ several States, or of any foreign State." Section 89-103 of the Code provides as follows: "No person shall hold, in any manner whatE:ver, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment." You will note that the first quoted provision of the statute refers to holding States offices and that the last quoted section refers to holding county of-

69

fices. A person is not permitted, under these statutes, to hold two State offices

and a county officer can not hold another county office. It was held in the case

of Long, e~ al. v. Rose, et al., 132 Ga. 288, that a solicitor of a county court was

not ineligible to hold the office of mayor of a municipal corporation. The case

also held that neithtr a county treasurer nor a member of the county board

of education were ineligible to hold the officE: of alderman of a municipal

corporation.

Unless the charter of a particular municipal corporation prohibits a county

officer from holding a municipal office created under the charter a person

could hold a county office and a municipal office.



2. Can a similar citizen hold a job as a mE:mber of the board of trustees

of his local school and at the same time hold a job on his town council as an

elected member.

I think that the case just cited above, Long v. Rose, supra, fully answers

this question. A person could hold office of trustee and council if the town

charter did not prevent it.

COUNTIES-Public Improvements (Unofficial) A county may build a hospital from funds on hand and those which may lawfully be raised by the levy of a special tax for the currE:nt year without a prior authorization by popular vote, but may not create a debt to be paid in future years without such author1zation.
May 14, 1946 Hon. C. E. Bigbie Coleman, Georgia
Your card of May 8th received. You request that I advise whether or not the county can levy a tax to build a hospital without first having an election by the peoplE:.
Under Paragraph 1, Section 4, Article 7 of the Constitution of 1945 the General Assembly may authorize a county to levy a tax to "build and repair the public buildings and bridges" and "to provide medical or other care, and hospitalization, for the indigent sick people of the county." The statute whereby the General Assembly authorized county authorities to levy tax was amended at the fifteen day sE:ssion held this year so as to conform to the Constitution.
It has been held by the Supreme Court in Griner v. Board of Commissioners of Bulloch County, et al., 180 Ga. 619, that building and equipping a hospital to take care of sick convicts and the indigent poor of the county, with limited facilities for pay patients is a lawful purpose and does not offend the provisions of the Constitution. The Supreme Court in the case of Hogan v. State of Georgia, 133 Ga. 875, ruled as follows:
"The Constitution of the State provides two ways for the construction of a public improvement and paying therefor; the one for cash and the other for credit . . . . . A contract for the erection of the court housE: may be made without a previous vote, where the money necessary to pay therefor is either in the treasury or may be lawfully raised by the levy of a special tax for the current year ..."

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See also case of Byrd v. Franklin, 151 Ga. 3 (1). In Dyer v. Erwin, the Supreme Court said: "Without the preliminary sanction of a popular vote as rE:quired by the Constitution, county commissioners have no authority to contract to have a court house built on the credit of a county at a price in excess of the available funds on hand, together with such taxes as may be lawfully levied for that purpose during the year the contract is made." The Constitution of the State provides two ways for the construction of public buildings, where such buildings are used for a purposE: that the county may engage in legally. Such a building may be constructed without a previous vote where the county authorities have on hand money necessary to pay therefor, or where they may lawfully raise by the levy of a special tax the necessary fund during the current yea~;. If the county authorities do not havE: the money on hand or cannot raise sufficient funds during the current year by the levy of a special tax, they would not be authorized to create a debt to be paid in other years without a vote by the people. If they have sufficient funds together with what they can legally levy by tax during the current yE:ar in which the building is to be erected, they would not be required to obtain a sanction by popular vote where they are legally authorized to erect the building for the purpose contemplated.
COURTS-City. Where the Act creating a city court provides that the solicitor shall be elected for a tE:rm of four years at the same time as members of the General Assembly, and vacancies shall be filled by appointment by the Governor until the next regular election, an appointee to fill a vacancy serves only until the next election for members of the General Assembly.
June 13, 1946 Hon. Ellis Arnall Governor of Georgia
Acknowledgment is made of your recent requE:st for an official opm10n dealing with the term of office of one appointed to fill a vacancy in the office of Solicitor of the City Court of Blakely, and the proper time for elect:ng his successor.
From the official records of the Executive Department, it appears that on August 23, 1945, you issued an executive order appointing Honorable William Lowrey Stone to the office of Solicitor o.f the City Court of Blakely, "succeeding Hon. Horace Bell, deceased, for a term beginning August 23, 1945, and expiring January 1, 1949." It also appears that Mr. Stone was commissioned by you for the term stated in your order. Mr. Bell's term of office as Solicitor would have expired on DE:cember 31, 1948, and therefore it appears that you purported to appoint and commission Mr. Stone for the balance of the unexpired term of Mr. Bell.
Section 2 of thE: Act of 1906 establishing the City Court of Blakely, Ga. L. 1906, p. 161, provides as follows:
"The prc~-nt judge and solicitor of the city court of Early County shall

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be the judge and solicitor, respectively, of the city court of Blakely until such time as their present terms as judge and solicitor of the city court of Early County would expir:. The successors to said judge and solicitor shall be elected by the qualified voters of Early County at the same time and under the same rules and regulations as members of the General Assembly are elected, and shall hold their offices four years and until their successors are elected and qualified. Vacancies in either of said offices shall be filled by appointm:nt of the Governor, the appointees to hold office until the next regular election."
The question presented is whether the last sentence. of the quoted portion of the Act means that the term of a person appointed 'by the Governor to fill a vacancy in this office expires at the "next regular election," at which time his successors should be :lected; and, if so, when the "next regular election" will be held.
This is not the first time this matter has been brought to my attention. Some time ago the Democratic Executive Committee of Early County asked me whether the November, 1946, General Election would be the propu time to elect a successor to Mr. Stone. After a hurried study of this problem, I verbally and unofficially advised this committee that it was my opinion that the November 1946 general election would not be the "next regular election" within the meaning of the Act, and that in my opinion Mr. Stone would be entitled to the office at least until the general election of November, 1948.
My hE:sitancy, then and now, to give an official opinion on this matter was not produced by the difficulty of the problem, although the proper construction of this statute is a very debatable question; but it was produced by my conviction that this is a matter which the courts, and not the Attorney General, should decide. My opinion will have no l:gal standing or binding effect if the question is ever presented to the courts. It seems that the proper procedure would have been for an interested party to bring a suit for a declaratory judgment in the courts. By such a judgment the question could hav: been legally decided. However, pursuant to your request, I am here giving you the conclusions which I have reached after further study of the questions involved.
It will be noted that the Act of 1906 specifically stated that persons appointed by the Governor to fill vacancies in the offices of judge and solicitor of the City Court of Blakely should "hold office until the next regular election." In the same section the Legislature had provided that the judge and solicitor "shall be elected by th: qualified voters of Early County at the same time and under the same rules and regulations as members of the General Assembly are elected, and shall hold their offices four years and until their successors are elected and qualified." It clearly appears that the solicitor is to be elected at a general election at which members of the General Assembly are elected.
But members of the General Assembly are elected in biennial elections for terms of two years, while the judge and solicitor were to be elected every fourth year. Had not a vacancy arisen in the office, no election of solicitor would have been held until 1948. Thus it can be argued that the proper time for electing a succf:ssor to Mr. Stone is the general election of 1948 at which members of the Genua! Assembly will be elected.

In the case of Stephens v. Reid, 189 Ga. 372, the Supreme Court o:i' Georgia dealt with the meaning of the phrase, "until the next regular election," as used in Article 6, Section 2, Paragraph 8 of the Constitution of Georgia in 1877, in fixing the tenure of office of the Chid Justice or an Associate Justice of the Supreme Court of the State, who by executive appointment had been named to fill a vacancy for an unexpired term.
The Court held that in view of the provision that members of thE: Court should be "elected by the people at the same time and in the same manner as the Governor and Statehouse officers are elected," the June, 1939, General Election could not be construed to be the "next regular election" within the meaning of the constitutional provision that "in case of any vacancy which causes an unexpired term, the same shall be filled by executive appointment, and the person appointed by the Governor shall hold his office until the next regular election, and until his successor for the balance of the unexpired term shall have been elected and qualified." In the opinion, the Court said:
"The 'vords 'next regular election,' as thus used in the constitution, have not been judicially defined in Georgia; but they have been the subject of judicial construction in other States having constitutions similar to the constitution of Georgia,. It is generally held in those States that such a phrase in a constitution, providing for appointments to fill vacancies in judicial offices, means until the next regular election held at the time fixed by law for the filling of the particular class of judicial offices to which the appointment 'vas made.... Our interpretation of the clause 'the next regular election' does not mean there can never be an election to fill an unexpired term of the Chief Justice or of an Associate Justice of this court where the vacancy has been filled by executive appointment. The tenure or term of office of thE: person receiving the appointment terminates when the people speak on that subject in an election held at the same time and in the samE: manner as the Governor and the Statehouse officers are elected, which, as now fixed by law, is the Tuesday after the first Monday in November in the even-numbered years. If a vacancy should be created in the office of an Associate Justice, for example, in June of an even-numbered year, and the unexpired term of office in which the vacancy existed continued, let us say, for four and a half years thereafter, the person receiving the executive appointment would serve only until the result of the succeeding November election had been declared, at which election a successor would be named by the people to fill the balance of the unexpired term. This prevents long-term appointments, as the regular elections occur biennially, thus in every instance of vacancy affording an early opportunity for choice by the people. If it was thought desirable to hasten such submission to the people, the amendment did provide for prompt submission."
Following the reasoning of the above decision, I am inclined to the view that the general election of November 1946, the regular time for electing members of the General Assembly, is the type of election at which judges and solicitors of the City Court of Blakely are authorized to be elected, and that it is the "next regular election" within the meaning of the Act establishing these offices.
The fact that the Act does not specifically provide that a successor to

73
the Governor's appointee for the unexpired term shall be elected at the next regular el~:ction prevents the case of Stephens v. Reid, supra, from being controlling on all of the questions involved here. By spedfically stating that the tenure of one appointed by the Governor should be "until the next regular election," rather than for the balance of the unexpired term, the Act leaves a strong implicatio!l that a successor to such appointee should be el~:cted at the next regular election.
The Act clearly shows that it was not intended that the Governor should have the power to appoint one to serve beyond the next regular election. If the Act should be construed as not authorizing the elect!on. of a successor at the next regular election-November, 1946,-such a construction would have the effect of giving the Governor the power of filling the vacancy for the balance of the unexpired term of the deceased solicitor, in direct conflict with the expressed intent that his appointee should hold office only until the next regular election. In Hooper v. Almand, 196 Ga. 52, 66, it was said:
"'Vhile the same constitution makes it the duty of the Governor to appoint to fill vacancies, all such authority to appoint is to be, wherever possible, so construed as to limit, rather than to enlarge, the power."
Following the reasoning of that opinion, thE: Act in question should, if possible, be construed to give to the voters the right to select a successor to the Governor's appointee at the first regular eltction held after the vacancy occurs. By stating that the Governor's appointee should hold only until the next regular election, after having theretofore defined the time and manner of electing the judge and solicitor of the court, it is reasonable to imply that the legislature intended that a successor to the governor's appointee should be elected at such next general election. Any other construction would violate express provisions of the Act.
As to whether the successor elected at the next general election shall hold office for the balance of the unexpired term of Mr. Bell, or for a full four year term, on which question no opinion is here expressed, attention is called to the case of Talmadge v. Cordell, 167 Ga. 594 ( 4).
In conclusion, while the Act of 1906 establishing the City Court of Blakely leaves much to be implied on the questions here involved, it is my opinion that the tenure of one appointed by the Governor to fill a vacancy in the office of solicitor of that court lasts only until the "next regular election," at which time his successor should be electE:d by the people, and that the "next regular election" for such office will be the general election of November, 1946.

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COURTS-City (Unofficial) An Act creating a city court is a general law and may be amended to extend the term of the solicitor without compliance with the provisions of the Constitution applicable to local or special legislation requiring notice and referendum.
March 5, 1947 Hon. H. L. Williams Attorney at Law Baxley, Georgia
Your letter of February 26th received. You write asking for my private opinion on thE question of whether or not the act creating the city court of Baxley can be amended so as to extend the term of the Solicitor from two to four years, so that the Solicitor and Judge will be elected at the same time, without giving notice of local legislation and without having a referendum on the bill.
Paragraph 15, Section 7, Article 3 of the Constitution provides for notice of intention to ask for the passage of local legislation. Under this provision of the Constitution no local or special bill shall be passed unless notice of the intention to apply therdor shall have been published in the newspapEr in which sheriffs' advertisements are published once a week for three weeks during a period of sixty days immediately preceding its introduction. We have construed this provision to mean that the advertisements must be within a period of sixty days from the date of the introduction of the bill. The passage of a bill where advertisements is begun next week would be Exceedingly doubtful since the General Assembly will adjourn on l\Iarch 22 and since it is necessary that the bill be read in each of the Houses on three different days. The provision of the Constitution relating to the notice of intention for local legislation contains the following provision:
"No office to which a person shall be elected shall be abolished, nor the tenn of the office shortened or lengthened by local or spEcial bill during the term for which such person was elected unless the same be approved by the people of the jurisdiction affected in a referendum on the question."
If the creation of a city court by the General Assembly by an independent bill is construed to be lEgislation by local or special bill, the quoted provision of the Constitution would apply. There is a difference of opinion between lawyers as to whether or not a bill which creates a city court is a local or special bill within the meaning of the quoted provision of the Constitution. I am privately inclined to the view that it is not a local or special bill within the purview of the Constitution. City courts, while not uniform, are authorized by Paragraph 1, Section 9 of Article 6 of the Constitution. City Court~, such as the City Court of Baxley are constitutional courts. Judgments rendered by such courts are reviEwable by the Appellate Courts on writ of error. In such courts when demand is made it is incumbent upon the State to furnish the parties with a trial by a jury as provided for in the Constitution.
These courts are not courts of the municipality in which they are located but they are State courts and have original jurisdiction, generally, in all civil cases such as are not vested exclusivEly in the Superior Courts and have the trial of misdemeanors. As such they perform judicial functions for the State,

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even though their jurisdiction covers only a small locality in the State. Judges of such courts may preside in any of the City Courts and exercise the powers, duties and functions devolved upon the judge in a manner similar to the Superior Court judges. Code Section 24-2201.
The judgE:s of Superior and City Courts are required to adjourn the regular and adjourned terms of court at least five days before the commencement of the next regular term. See Code Section 24-3010.
Many other Sections of the Code could be pointed out which refer and define the duties of the judges of the city courts in the same category as the duties of the judgE:s of the Superior Courts. It was stated by the Florida court in Grey v. Stoutamire, 179 So. 730:
"The term 'special or local laws' within constitutional provision requiring the giving of notice of proposed enactment of such laws meant laws relating to entities, interest, rights, and functions other than those of the State, and did not require the giving of notice of proposed enactment of laws for exercise of State powers and functions, notwithstanding that such laws might be more or less local or special in their operation or objects."
It is, therefore, my privatE: view that the City Court Act could be amended without notice of local legislation so as to change the term of Solicitor so as to run concurrently .with the term of the judge, and it would not be necessary to have a referendum on such a bill. However, as stated before, there are good lawyers who differ with me on this view and it might be a safer plan for you to give the notice and provide for a referendum on the bill where you extend or change thE: term of the elected Solicitor.
COURTS-City (Unofficial) The specific law governing the disposition of the proceeds from the condemnation and sale of vehicles used in violation of the liquor laws and the disposition of fines recE:ived from violations of the game and fish laws, control over the provisions for disposition of fines and forfeitures in the Act creating the City Court of Millen.
September 2, 1947 Hon. J. H. Simpson Clerk Superior Court Jenkins County Millen, Georgia
I have your letter of August 20, in which you request my opm10n as to the proper disposition of surplus remaining from the proceeds of sales of vehicles condemned in the City Court of Millen under the provisions of Code Section 58-207, as amended, after payment of the costs incident to the seizure and condemnation.
As you have pointed out, Section 45 of the Act creating the City Court of Millen, (Ga. L. 1943, p. 758) provides that the Clerk of that Court shall retain one-half ( 1h )' of the fines and forfeitures arising in that Court and that these monies shall be used to pay the costs of thE: sheriff, clerk, and justices of the peace in criminal cases disposed of in the Court.
Code Section 58-207, as amended, (Ga. L. 1946, p. 96) provides that the

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proceeds from seizure, condemnation and sale of vehicles used in violation of the liquor laws shall be applied, first, to the expenses of the case, and then one-third (1/3) of the remainder to the officer making the seizure, then to the court costs of the specific case. Section (d) then provides:
"The remainder, if any, shall be paid into the County Treasury to be held as a separate fund to be paid out under order of the Court as insolvent costs in other cases arising from the violation of any of the provisions of this law .." The creation of this separate fund for use only in cases under the specific Statute is not consistent with the distribution of forfeitures as provided in the Act creating the City Court of Millen. Insofar as this specific fund is concerned, the two Statutes are in conflict. The question is, then, which shall prevail? In Stephens v. Reid, 189 Ga. 372, the Court stated:
"General laws will not be so construed as to repeal an existing particular or special law, unless it is plainly maniftst from the terms of the general law that such was the intention of the law-making body."
See also Hammond v. State, 10 Ga. App. 143.
The intention of the law-making body as to resolving conflicts between the Act of 1946 and other Acts is expressed in Section 2:
"Be it further enacted by the authority aforesaid and it is hereby so enacted that all laws and parts of laws in conflict with this Act be and the same is hereby repealed."
It would seem that the Legislature has foreseen the possibility of such conflicts as we have here and has specifically provided for them by Section 2 in the general law, making the general law controlling.
It is emphasized that the change in the disposition of forfeitures in your Court applies only to cases arising under Code Section 58-207 and does not otherwise affect the procedure in your Court.
As to the disposition of fines received from violations of the Game and Fish Laws, Code Section 45-127 provides that one-half (%) of such fines shall be retained by the Clerk of the Court and paid to the proper officers of the Trial Court. This is a law of a general nature which was enacted prior to the Act creating the City Court of Millen.
Paragraph 1, Section 4, Article 1 of the Constitution of 1945 provides as follows:
"Laws of a general nature shall have uniform operation throughout the State and no special law shall be enacted in any case for which provision has been made by an existing general law."
It has been repeatedly held that where a subject has been dealt with by a general law, a special law enacted thereafter will not change the provisions and application of the general law. See Hood v. Burson et al, 194 Ga. 30 and cases cited therein.
Therefore, it would seem that the division of such fines should be made according to the general law as stated in Section 45-127.
The "proper officers of the Trial Court" to whom the Clerk is authorized to pay the amounts retained under Section 45-127 are those officers who are compensated for their services on a fee basis under the Act creating the City Court of Millen.

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COURTS-Justices of the Peace Justices of the peace have jurisdiction in bail trover cases when the principal amount involved does not exceed $200.
September 25, 1946 Hon. A. .I. Hartley, Director Department of Public Welfare
I have yours of the 25th in which you request my opm10n as to whether or not the Justice Courts of Georgia now have jurisdiction in bail trover cases under the Constitution as amended; and whether or not it is necessary to have an enabling act of the General Assembly to put the jurisdiction into effect.
The only change made in the new Constitution relative to the jurisdiction of Justices of the Peace was to add the words, "and conversion of personal propE:rty," so that Paragraph 2 of Section 7 of Article 6 of the new Con stitution reads as follows:
"Paragraph II. Jurisdiction. Justices of the peace shall have jurisdiction in all civil cases arising ex contractu and in cases of injury or damage to and conversion of personal property, when the principal sum does not exceed two hundred dollars, and shall sit monthly at fixed times and places but in all cases there may be an appeal to a jury in said court, or an appeal to the Superior Court under such regulation as may be prescribed by law." Bail trover being an action for conversion of personal property, it was un questionably in the minds of the framers of the new Constitution when they inserted these words.
In those cases wherein the Court rulE:d that Justices of the Peace had no jurisdiction over bail trover proceedings during the past, the ruling was based on the fact that the Constitution gave no jurisdiction to Justice Courts to cases of conversion of personal property. Now that the Constitution has been changed to include this, these rulings would not be controlling. There fore, in my opinion Justice of the Peace Courts now have jurisdiction in bail trover casE:s up to the amount of two hundred dollars.
As to whether any enabling Act is necessary, in my opinion Code Section 24-1001 (.4), relative to the jurisdiction of Justice Courts, is a sufficient enabling Act:
"24-1001. General and original jurisdiction.-Justices of the peace have general and original jurisdiction: ...
"4. Of all other causes when jurisdiction is constitutionally given them, in their capacity as courts of jmtice." This convinces me that no E:nabling Act is necessary.

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COURTS-Justices of the Peace (Unofficial) ThE: duty of calling an election to fill a vacancy in the office of justice of the peace is in the justice of the peace residing in the district; if there be none, then in the notary public ex officio justice of the peace residing in the district; if there be neither, then in the ordinary.
January 3, 1946 Hon. J. W. lvey, Ordinary Randolph County Cuthbert, Georgia
Your letter of January 1st received. You refer to Sections 24-406 and 24-407 of the Code of 1933 and request that I advise whether or not it is the duty of thE: notary public ex officio justice of the peace, or your duty as Ordinary, to call an election to fill a vacancy caused by the death of a justice of the peace of your county.
Section 24-406 of the Code provides in substance that when a vacancy occurs in the office of the justice of the peace and there is a justice of tbe peace residing in the district where the vacancy occurs, it is the duty of the justice of the peace to set a day for an election on some Saturday and to give fiftE:en days notice by advertising the same at three places in the district. On the day of the election the justice of the peace calling the election and two freeholders shall hold the election in the same manner as a regular election for a justice of the peace' is held, and shall certify the results of the election to the Governor who shall commission the person elected for the unexpired term.
If there is no other justice of the peace residing in the district, and there is a notary public E:X officio justice of the peace residing in the district, it is the duty of the notary public ex officio justice of the peace to call and hold the election and certify the results thereof as provided for in Section 24-406 of the Code. See the case of Killorin. v. Mitchell, 141 Ga. 524, where the Supreme Court rules as follows:
"Section 4658 of the Code of 1910, providing for the election of a justice of the peace to supply a vacancy in that office, propQrly construed, makes it mandatory on the part of the notary public and ex-officio justice of the pE:ace, in the militia district in which there is a vacancy in the office of justice of the peace, to call an election to be held within a month from the vacancy, on a Saturday sufficiently removed from the date of the vacancy to permit to be posted the statutory notice of fifteen days. Accordingly, it was not erroneous to grant a mandamus absolute, on the application of a citizen presented on November 17, 1913, against the notary public and exofficio justice of the peace of a militia district, to call an election to fill the vacancy in the office of justice of the peace in such district, which had occurred on October 28, 1913, wherE: no election had been called."
If there is neither a justice of the peace or a notary public of the district where the vacancy occurs then it would be the duty of the Ordinary to call the election as provided for in Section 24-407 of the Code. I am of the opinion that the Ordinary would not have any jurisdiction for the calling of the E:lection if there is either a justice of the peace or a notary public ex officio justice of the peace residing in the district where the vacancy occurs.

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Should the notary public ex officio justice of the peace, or the justice of the peace, set a date for an election as provided for in Section 24-406 of the Code, and for any reason the election should not be held, then it would be the duty of the Ordinary to fill the vacancy by appointing some resident of the district and Cf:rtifying the appointment to the Governor as provided for in Section 24-408 of the Code.
COURTS-Jus:ices of the Peace (Unofficial) Absencf: from the State, without change of residence, does not vacate the office of justice of the peace until the vacancy has been judicially determined by a court of competent jurisdiction. Septf:mber 9, 1946
Hon. W. S. Wilson Fairmount, Georgia
Your letter of August 27th received. You state that a duly elected and qualified justice of the peace had been out of the State a year, that he stayed with a son and that he did not move anything from his home in your county, and he came back and ruled on a case in his court. You request that I advisf: whether or not a judgment rendered by him was legal.
Under Section 89-501 of the Code an office in the State shall be vacated by death, resignation or by a judgment of the court of competent jurisdiction declaring the office vacant. Under Paragraph 5 of said Section the offiee becomes vacant by the incumbent ceasing to be a resident of thE: State, or of the county, circuit, or district of which he was elected. In the first case the office should be vacated immediately; in the latter cases from the time the fact is judicially ascertained.
From your lettu I could not state whether or not the justice of the peace moved his citizenship and became a resident of -another State or not. You do not state sufficient facts for me to come to any conclusion on that question. From the facts stated it would seem that he did not change his residence, for you state in the letter that he did not move anything from his home. If he changed residence from Georgia to another state the office would have become vacant. If he did not intend to change his citizenship to another state, his mere absence did not vacate the office until it has been judicially dE:termined by a court of competent jurisdiction. I cite for your information Bush v. The State, 10 Ga. App. 544 (2). Long v. Carter, 39 Ga. 508 (1). Johnson v. The State, 27 Ga. App. 679, (3).
COURTS-Justices of the Peace (Unofficial) A justice of the peace is not ineligible to hold office of mayor of a municipality unless prohibited by municipal charter. November 20, 1946
Hon. H. B. Stone, Sr. Office of Tax Receiver Baxley, Georgia
This will respond to your letter dated November 16th, in which you inquire whether a man can hold the office of Justice of the Peace and also hold the office of Mayor of the city at the same time.

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I am not familiar with any general law of this State which would prohibit a justice of the peace from also holding the office of mayor of a municipality. It may be that you have in mind the provisions of Section 89-101 of the Code of 1933, which reads in part as follows:
"The following persons are held and deemed ineligible to hold any civil office, and the existence of any of thE: following states of facts shall be a sufficient reason for vacating any office hE:ld by such person, but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto, viz: (4) Persons holding any office of profit or trust under the Government of the United States (other than that of postmaster and officers of the Reserve Corps of the United States Army, Navy or Marine Corps), or of either of the sE:veral States, or of any foreign State."
However, in construing the above provision as it appeared in an earlier Code, it was held in the case of Long v. Rose, 132 Ga. 288, that this provision of the Code did not render one who held the office of solicitor of the county court of a county ineligible to hold the office of mayor of a municipal corporation located in such county; nor did it render persons who respectively held the offices of county treasurer and member of the board of education of thE: county ineligible to hold the offices of aldermen of such municipal corporation. The decision of the Court in that case was based upon the theory that the words employed in the statute declaring ineligibility to hold "any civil office in this State" do not refer to municipal officus such as mayor and aldermen. The cited case was followed in the case of Phillips v. City of Jefferson, 13 Ga. App. 376, in which it was held that the solicitor of the city court and the clerk of the superior court were not disqualified to serve as members of the city council of the City of Jefferson.
Of course there may be provisions contained in the charter of the municipality to which you have reference which would prohibit a person holding the office of justice of the peace from also holding the office of mayor. I am unable to definitely answer that question, as you do not state what municipality is referred to in your request. However, your attention is callE:d to the following language of the Court in the case of Phillips v. City of Jefferson, supra, which may be pertinent to the situation to which you have reference:
"In this view the provision of the charter of Jefferson which empowers the mayor and each membE:r of the council, under certain circumstances, to discharge the duties of justice of the peace and sheriff, can not affect the case; for even if any one of them was on such an occasion a State officer pro tempore, neither the mayor nor any of the council would be State officers when discharging municipal functions. The right to discharge upon occasion the duties of a State officer has been granted them; and perhaps, while executing the duties of the office of either justicE: of the peace or sheriff, the councilmen of the City of Jefferson might temporarily be civil officers of this State, but when acting as mayor or councilmen their duties would be of an entirely different nature, and the character of their offices would be fixed by the discharge of these municipal duties."

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COURTS-Juvenile (Unoffi::ial) ( 1) A juvenile court created by appointment by the superior court of the city court judge has the same jurisdiction as one created by the recommendation of two consecutive grand juries. (2) In counties of less than 60,000 population only the city court judge may be designated as the juvenile court unless a special juvenile court is established by the recommendation of two consecutive grand juries, in which event the superior court judge makes the appointment and determines the qualifications.
October 19, 1945
Mrs. Guion Griffis Johnson Executive Secretary Georgia Conference on Social Welfare Atlanta 3, Georgia
Your letter of October 4th received. You request that I answer three questions, which are stated as follows:
"1. Does the present juvenile court (set up by superior court judge by appointment of the judge of the city court) have all the authority that the juvenile court would have if it were set up by recommendation of two consecutive grand juries?
"2. Under the present juvenile court as today constituted, does the judge of the superior court have authority to appoint as the judge of the juvenile court any other person than the judge of the city court, and if so from what categories can the judges of the juvenile court be drawn?
"3. Does the designated court have original jurisdiction in regard to first question?"
The Act of 1915 codified as Sections 24-2401 through 24-2440 of the 1933 Code creates and establishes juvenile courts in all counties of the State having a population of 60,000 or more, and under this Act the judge of the superior court is directed to appoint a judge of the juvenile court. Any attorney at law, who has practiced for three or more years is eligible to hold the office of judge of said court: Provided, that among his qualifications shall bE: interest in children and knowledge of the problems of social service, of philanthropy, and of child life. The rights, powers and duties of such a juvenile judge are defined in the Act. The General Assembly in 1916 (Ga. L. 1916, p. 60) sought to extend juvenile courts to every county of this State by providing that in all counties having a population of less than 60,000 the judge of the superior court may designate an existing court to act and to be known as the juvenile court of said county. A part of this Act of 1916 has been declared to be unconstitutional where the judge seeks to name any other court of record except city courts as a juvenilE: court. See Wages v. Morgan, 174 Ga. 158.
It is my opinion that where the judge of the superior court designates a judge of the city court or the city court of the county, as a juvenile court, such court has the same rights, powers and duties as given juvenile courts by the Act of 1915. The Act of 1916, Code Section 24-2441, provides that in counties having a population of less than 60,000 upon the recommendation of two consecutive grand juries, the judge of the superior court shall appoint a

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qualified person, of high moral character and clean life, selected for his special fitness for work with delinquent and neglected children, to be judge of the juvenile court, whereupon it shall be considered that a special juvenile court has been established in said county. It is my opinion that a judge selected on recommendation of the grand juries by virtue of the provisions of the Act of 1916 will have the same jurisdiction, powers and rights as that conferred upon juvenile courts created by the Act of 1915, and that of the judge of the city court where appointed under the Act of 1916. Without the recommendation of two consecutive grand juries, the superior court judge would not, in my opinion, have the right to appoint any person as 'judge of the juvenile court other than the city court judge. I am of the opinion that where the grand juries have made recommendation, which has tht effect of establishing special juvenile courts, that the judge may appoint anyone that he deems properly fitted to perform the work in the manner prescribed by the Act of 1915 and the Act of 1916.
COURTS--Ordinaries (Unoffi:ial) Ordinaries may not try violations of the Compulsory School Attendance Law until tht passage of an enabling act.
November 15, 1945 Hon. J. R. Lunsford Butler, Georgia
Your letter of November 6th received. You request that I advise as to your duties and the procedure for the trial of cases made under the Compulsory School Attendance Law.
The Constitution was amended so as to give courts of ordinary jurisdiction to dispose of or try cases and impose sentences for the violation of the Compulsory School Attendance law, same applying to all counties of the State where there is no city or county court. The enforcement of the Attendance Act is lodged in a visiting teacher, and the violation of the Act is made a misdemeanor. (See Ga. L. 1945, pp. 343-348).
Section 10 of the Act indicates that the Superior Court, city or other court having jurisdiction may try the offender and impose the punishment. The provision of the amendmE:nt to the Constitution has not yet been put into force by any enabling act, and I am of the opinion that it is necessary for the General Assembly to pass such an act setting up the procedure to be followed by ordinaries in the exercise of the jurisdiction conferred. Such a procedure was followed when the ordinaries were givtn jurisdiction to try and dispose of cases under the Highway Patrol Act.

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COURTS-Ordinaries (Unofficial) No fees are provided for a clerk of the court of ordinary but one or more may be appointed by the ordinary at his own expense.
December 18, 1945 Hon. J. F. Jackson Ordinary, Camden County Woodbine, Georgia
This will acknowledge your letter of December 12, in which you request an opinion as to the fees of the Clerk of the Court of the Ordinary.
Section 24-1801 of the Code of Georgia of 1933 reads as foilows: "The ordinaries are, by virtu~:: of their offices, clerk of their own courts; but they may, at their own expense, appoint one or more clerks, for whose conduct they are responsible, who hold their offices at the pleasure of such ordinary." Under this section, it would appear that no fees were provided for clerks of the court of the ordinary, but that their appointment would be at his ~::x pense. Therefore, I am of the opinion, unofficially, that the ordinary, as ex-officio clerk, would not be entitled to fees for any services rendered by him as clerk.
COURTS-Ordinaries (Unofficial) (1) A vacancy in the office of tax collector is filled by temporary appointment by thE: ordinary until a special election to fill the vacancy is held. (2) A special election to fill a vacancy in the office of tax collector may be held on the same day as the general election.
Hon. M. F. Moody, Ordinary Appling County Baxley, Georgia
Your letter of July 30th received. You state that a vacancy is likely to occur in the office of Tax Collector of Appling County and request that I advise whether or not you could appoint someone to fill the vacancy and if it would be legal to fill the vacancy in the Novembtr general election.
Under Section 23-701 of the Code of 1933 the Ordinary of the county is authorized to fill vacancies by appointment and to order elections to fill vacancies.
Section 92-4701 of the Code provides that if a vacancy shall occur in the office of Tax Collector that the vacancy shall be filled in the same manner as a vacancy in the office of the Clerk of the Superior Court is filled.
When a vacancy occurs in the office of the Clerk of the Superior Court the Ordinary must appoint some qualified person to discharge. the duties of the office until the vacancy is filled by a special election. See Section 24-2707 of the Code. The Ordinary is required to appoint a day for a special election and to give 20 days notice previous to the day of the election wherE: the vacancy occurs in the office of the Clerk of the Superior Court. Likewise if a vacancy occurs in the office of the Tax Collector the Ordinary shall after making temporary appointment to fill the vacancy appoint a day for a special

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election and shall advertise the same: 20 days previous to the election as provided in Section 24-2704 of the Code.
I see no reason why the Ordinary could not set the day of the special election on the same day that the November general election is held. However, I am inclined to think that a separate ballot should be use:d for the special election due to the fact that persons can qualify for special elections at any time up to five days before the special election as provided in Act No. 633, approved February 1, 1946. Persons qualified to vote in the special election would not be e:ligible to vote in the general election since the last day for qualifying as a voter in the general election was July 5 as provided for in said Act. The results of a special election for a county officer must be made to the Governor who must commission the officer. See Section 24-2705 of the Code.

COURTS-Ordinaries (Unofficial) Costs in lunacy proceedings.

Hon. G. A. Garrett, Ordinary Walton County Monroe, Georgia

August 22, 1946

This acknowledges receipt of your lette:r of the 16th instant in which you request that I furnish information relative to the legal cost in a lunacy trial. You re:quest specifically that I advise as to the sheriff's fees.

Since the costs in lunacy cases are paid from the county treasury, where the party tried does not have any estate, the county attorney should be consulted for an opinion for your guidance in assessing costs in such cases.

Section 49-604 of the Code of 1933 outlines the procedure to be followed by the Ordinary in the examination of a person to determine his sanity and to pass upon the question of whether or not there should be appointed a guardian or whethe:r or not such person should be committed to the State Hospital. In connection with this procedure Section 49-613 of the Code provides that the Ordinary shall draw his warrant upon the treasury of the county for such sum or sums as shall be necessary to defray the expense of trying a commission of lunacy and for conveying an insane person to the Milledgeville State Hospital. This Section contains a proviso to the effect that the sum to be paid shall not exceed $10 and actual expense to each of two reputable physicians who compose a part of the commission. In addition to the two physicians the law requires a reputable person, an attorney, to sit as one of the commission and this Section provides that such a person shall not receive more than $5 in each case when such insane person shall be lawfully committed to the State Hospital.

Section 49-613 of the Code is very loosely drawn and if strictly construed the attorney would receive no fee where the person was not committed to the Hospital. Howeve:r, this Section has been construed by former Attorney General, M. J. Yeomans in the Opinions of the At';orney General, 1935-1936, page 46, in the light of the Act of 1918 which enacted the Code provisions,

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to the effect that the third person is entitled to his pay regardless of whether or not the person is found sane or committed to the State Hospital.
Section 49-612, provides for a procedure before the Ordinary to have an insane person committed to the State Hospital where oath is filed that such insane person, for public safety or other good reasons should not be left at large. This Section fixed the fees of the Ordinary at $5 and the fees of the sheriff at $3. The Act of 1918 (Ga. L. 1918, p. 163) did not directly seek to repeal or to modify Section 49-612. Indirectly it may havf: had the effect of modifying same. However, the Code Commission which.prepared the Code of 1933 included in the Code both provisions and the Code has since been legally adopted by the General Assembly and has the effect of law and, therefore, both Sections now have the effect of law. I have tritd to reconcile the two provisions. I came to the conclusion that latter acts of the General Assembly definitely fixed the cost to be paid the Ordinary and that by reason of Section 24-1716 of the Code as amended and as set forth in the Annotated Supplement that the Ordinary is entitltd to receive $10 for lunacy cases. Not all insane persons who have been found to be insane are subject to committment to the State Hospital. Where the lunacy commission has found a person to be insane as provided for in Section 49-604, and such person is not committed to the State Hospital, if such person becomes a menace to public safety or there are other good reasons why the party should be committed to the Hospital and a warrant is issued, the proceedings would be had as provided in Section 49-612 and in such proceedings the Ordinary would be entitled to $5 and the sheriff would be entitled to $3. Thus according to my private opinion the Ordinary would be entitled to $10 for the first trial where the person was not committed to the State Hospital and to $5 in the later trial where it became necessary to commit such person to the Hospital. .
The law provides that the expenses of lunacy cases shall be paid by the estate of the insane person where the estate is able to defray the expenses, and if the estate is not sufficient to defray the expenses the same should be paid from the treasury of the county.
In regard to the sheriff's fee I will state that I have examined the Code and do not find any statute other than Section 49-612 which provides that a fee is to be paid the sheriff. However, under Section 24-1901 of the Code courts of ordinary have authority and jurisdiction over the appointment of guardians of pe:rsons of unsound mind and for issuing commissions of lunacy in conformity with law.
Under Section 24-2813 of the Code in Paragraph 2 sheriffs, by themselves or deputies, are required to attend all sessions of the court of ordinary whenever required by the ordinary. By Act approved March 6, 1945 (Ga. L. 1945, pp. 221-226) it is provided that sheriffs shall be entitled to charge and collect for attendance upon courts of ordinary the sum of $5 per day. Since courts of ordinary have jurisdiction over the appointment of guardians for persons of unsound mind and for issuing commissions of lunacy in conformity to law, when the ordinary requires the sheriff to attend such courts I am of the opinion that the sheriff would be entitled to collect from the county treasury his per diem of $5 provided the estate of the insane person is not sufficient to defray the expenses.

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In addition to the expenses of trial noted hereinbefore, the duty would devolve upon the ordinary to provide means of transfering an insane person to th(: State Hospital and under Section 49-613 the ordinary is authorized to draw his warrant upon the treasury of the county for same, provided that the estate of the insane person is insufficient to defray such expenses.
COURTS-Ordinaries (Unofn;ial) An ordinary may not correct a mis-nomer in a marriage record but may re-record the certificate when the record shall have been incorrectly made.
January 10, 1947 Hon. J. W. Dooly Ordinary, Murray County Chatsworth, Georgia
Please accept my apologies for the long delay in answering your letter of December 5th. We have spent considerable time trying to find the answer to your question. I regret to say that, seemingly, there is nothing in the Code or in Georgia cases directly in point.
Specifically, you wished an unofficial opinion as to your power to correct a misnomer in a marriage certificate, and to change the "court" record accordingly, as requested in the Madisonville, Tenn(:ssee, letter.
We find, as you no doubt already know, that in Georgia the Ordinary serves in a dual capacity, as Judge of the Court of Ordinary, and as Clerk of the Court. The duties of Clerk may, of course, be delegated to anothE:r. As a Court, the Ordinary has the same power over the Court's record as are inherent in all Courts, and may amend the minutes at proper times, or upon proper motion, to make them conform to the truth. I find nothing in any of the Code Sections concErning Clerks of Court conferring upon such officials any such power.
It is my unofficial opinion that a marriage record is not a Court record. The Ordinary's duty with reference to such records is set out in the Code Sections dealing with his ministerial duties as Clerk, and are not included in the sections dealing with his jurisdiction and powers in the judicial capacity of a Court. Since this is true, I believe a marriage rEcord is a public record, but is not in the same category as the minutes and records of your Court. There being no power conferred upon a Clerk, as such, and an Ordinary, in dealing with marriage records acting in the capacity of Clerk, I do not believe an Ordinary would have authority to alter a marriage certificate, or change the public records.
However, under Section 38-620, it is possible you may be able to re-record the certificate, just as it is, with the additional recording of the affidavits attached to it, and to cross-index the original record and the new one. This section reads:
"Whenever the book _containing the record of any deed, will, execution, or other paper, the record of which is provided for by law, is destroyed or lost, or when the record of such paper shall have been incorrectly made or destroyed, the person whose duty it is to rocord such paper, shall, upon receiv-

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ing the fees for such cases provided, record said paper, together with the certificate or certificates of former record thereof." (Emphasis supplied.)
I find no case in Georgia involving this Section of the Code, but, since it is provided that returns of marriage licenses are to bE: recorded, I see no reason why it should not apply to the re-recording of those returns as well as any other. The re-recording of the original, without altering the name as it originally appears, but recording the affidavits showing error in the name, would not amount to an alteration of the records, but, properly cross-indexE:d, would be sufficient, I believe, to put any one on notice as to the possibility of an error in the original record.
However, this would only apply to your own record books, and you would not have power to alter the name in the certificate itself.
Your correspondent asks for information as to how the "court record" may be corrected, if you cannot correct it upon the affidavits. There is, of course, provision for the correction of its own records and minutE:s by a Court, but since it appears that the return of a marriage license may not be the record of the Court of Ordinary, I know of no procedure whereby the Ordinary, in the ministerial capacity of Clerk, may correct the original records.

COURTS--Ordinaries (Unofficial) When the ordinary is incapacitated, his jurisdiction may be exercised by the county judge or city court judge, or, if there be no such courts, by the superior court clerk, but not by the clerk of the court of ordinary.

Ron. J. M. Middlebrooks Ordinary, Upson County Thomaston, Georgia

May 30, 1947

The question which you present is whether when the Ordinary of your county is sick and unable to handle county traffic cases before his court, can the Clerk of the Court of Ordinary handle them for him.

In this connection your attention is invited to Code Section 24-1710 which is as follows:

"24-1710. (4785) Proceedings when ordinary disqualified.-Whenever an ordinary is disqualified or from sickness or other causes is incapacitated to act in any cause, thE: county judge or city court judge, and, if there be no such courts, then the clerk of the superior court of such ordinary's county may exercise all the jurisdiction of ordinary in such cause."

Also, see the case of Day v. Smith, 177 Ga. 467 and Maddox v. First National Bank of Jefferson, 191 Ga. 106.

In view of the above, it is my opinion that when the Ordinary of Upson County is incapacitated to act in any cause that the Clerk of the Superior Court of Upson County may exercise all the jurisdiction of the Ordinary in such cause.

I regret to learn of your illness and trust that you will have a speedy recovery.

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COURTS-Ordinaries (Unofficial) An ordinary must exercisE: the jurisdiction in traffic cases conferred upon him by statute.
October 3, 1947 Hon. J. F. Jackson, Ordinary Camden County Woodbine, Georgia
In your letter of September 15th you request an opmwn on whether or not it is mandatory for the Ordinary to exucise the jurisdiction over violations of the Highway Patrol Act as delegated to him by the Act of the General Assembly, (Ga. L. Ex. Sess. 1937-1938, pp. 558-560).
It is statE:d in, 21 C. J. S. 140, Sec. 90, "As a general rule, the courts must exercise, in matters properly before them, the jurisdiction which has been conferred upon them."
See also, 30 Am. Jur. 798, Sec. 93, "It is the duty of a judge who is eligible and competent to sit in a cause to exercise his judicial functions therein, and to make all necessary orders and decrees pertaining thereto, regardless of personal embarrassment, feelings of delicacy, or other considerations not amounting to legal disqualifications."
Although, of coursE:, it is not likely that it would come about, mandamus will lie to compel a court to exercise its jurisdiction on matters properly before it.
See, 35 Am. Jur. 25, Sec. 254, "A court cannot arbitrarily refuse to exercise the powers intrusted to it by law. And where a matter falling within the scope of the court's jurisdiction is properly presented to it by a litigant entitled to be heard, it usually becomes its duty to assume jurisdiction and pass upon the matter. Any unjustifiable failurE: or neglect so to do is not action taken in the exercise of discretion within the rule hereafter considered, but is a refusal to perform a judicial function imposed on it by law, and, as such, lies within the compulsory process of higher courts. One of the ancient offices of the writ (mandamus), in fact, was_ to compel action by lower judicial tribunals."
It is my opinion, that it was the intention of the Legislature to provide a speedy hearing in traffic violations by conferring jurisdiction ovE:r them upon the court of Ordinary.
I do not believe that this jurisdiction is discretionary with the Court. Therefore, it is my opinion, based on the above authorities, that you are bound to hear cases brought under the Act, unl~;ss there is some other basis for refusing jurisdiction than mere discretion.

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COURTS-Sheriffs (Unofficial) A sheriff's fee for collecting a t~x fi fa is in addition to the tax collector's fee for issuing the tax execution.
October 8, 1945 Ron. E. E. Plowden Tax Collector, Calhoun County Morgan, Georgia
You refer to Act 275, approved March 6, 1945, (Ga. L. 1945, pp. 221224) amending Section 24-2823 of the Code of 1933, whi<;h section scheduled the fees for sheriffs, and r~::quest that I advise whether or not the sheriff is entitled to collect for his services the fee of $1 for collecting tax fi. fas. where the tax fi. fas. do not amount to over $100, and whether or not he is entitled to $2 where such fi. fas. do amount to over $100, or whether or not the fees include the tax collector's costs.
Code Section 24-2823 enumerating sheriffs fees, as amended, provides in part as follows:
"The sheriffs shall be entitled to charge and collect the following fe~::s for official duties perform~::d by them, to wit:
"Civil Cases-Collecting tax fi. fas. $100 or less each $1; Collecting tax fi. fas. over $100 each $2."
Section 92-8002 of the Code of 1923 provides that tax collectors shall be allowed a fee of 50 for issuing tax executions, to be paid the tax collector when collected from the defendant.
It is my opinion that the sheriff who collects a tax fi. fa. of $100 or less is entitled to a fee of $1 and that the tax collector is ~::ntitled to an additional fee of 50 of such fi. fas. Where the amount of the tax fi. fa. is over $100 the sheriff is entitled to a fee of $2, and the tax collector is entitled to an additional fee of 50 for the collection of such a fi. fa. from the defendant.
COURTS-Sheriffs (UnoffLial) Sheriff's cos~s in felony cases are paid from the general county fund and the county may not charge th~:: amount paid against the fines and forfeitures.
November 6, 1945 Ron. W. Wright Abbot Attorney at Law Louisville, Georgia
Your letter of October 16th received. You request my opmwn on the question of who is entitled to the sheriff's costs derived from insolvent fines and forfeitures for felony cases since Senate Bill No. 118, approved March 6, 1945, provides that the sheriff's costs shall be paid out of gentral county funds.
Senate Bill No. 118, approved March 6, 1945 (Ga. L. 1945, pp. 221-224) enumerates fees which sheriffs are entitled to collect for their services in both civil and criminal cases, and the Act provides that mileage fees, fees for E:Xecuting criminals and for guards, fees for subpoenaing witnesses for the State, and all costs arising from services rendered in felony cases shall be

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paid from county funds, whether the defendant is convicted or acquitted. The Act also provides that the jail fees shall be paid monthly by the county unless otherwise regulated by local acts or laws.
Under my private view of the construction to be placed on this Act a sheriff may be entitled to some insolvent costs, as an illustration, for costs arising by reason of misdEmeanor criminal cases disposed of in the Superior Court. Since the Act provides that the costs arising from services rendered in felony cases is to be paid by the county from county funds, there would be no insolvent costs due the sheriff on felony cases arising after the approval of the Act. I am of the further opinion that the passage of this Act did not require the county to pay any of the insolvent costs due a sheriff for services rendered prior to the passage of the Act, and, thErefore, the sheriff may have an insolvent cost bill for services rendered in felony cases prior to the approval of the Act, and there may be insolvent costs due former sheriffs for services rendered prior to the passage and approval of Senate Bill No. 118.
Section 27-2902 of the Code of 1933 requires the officers of the several courts, including the prosecuting officers, to pay into the county trEasury all moneys arising from fines and forfeitures collected by them. However, such officer shall not be required to pay into the treasury such moneys until all legal claims on such funds to the officer bringing the money into court, and the costs due the justices and constables in the particular case have bE:en allowed and paid. Section 27-2903 of the Code requires the solicitor, under order of thE court, to distribute the fines and forfeitures to such persons, and according to the priorities, entitled to same. Section 27-2904 of the Code of 1933 requires the trE:asury to keep the fines and forfeitures in a distinct and separate fund from the county funds arising from other sources, and provides that the same shall be paid only for insolvent costs, and in cases where defendants have been acquitted in the manner pointed out by other provisions of the Code. Section 27-2910 of the Code of 1933 gives the officers of the court a lien upon all funds arising from fines and forfeitures, for the payment of their insolvE:nt costs.
In your letter you intimate that the county attorney takes the position that the county is entitled to have an insolvent costs bill set up for the amounts paid by the county to the sheriffs in felony cases, for the reason that the Act of 1945 requires the county to pay the same. The Act does not make any provision for the payment of the sheriff's portion into the general funds of the county, and I am, thtrefore, of the opinion that the rule for handling fines and forfeitures and the payment of insolvent costs as provided for in Chapter 27-29 of the Code have not been changed. I am fortified in this opinion in the ruling of the Supreme Court in the case of Randolph County v. Ellis, 130 Ga. 121.
In the Randolph case the county sought to recover of a clerk certain amounts that had been paid by the county for jail fees. As I construe the ruling of the court in denying thE: county the right of recovery the court held that the insolvent fund arising by reason of the payment of fines and forfeitures could not be used to reimburse the county for the payment of costs required of it by law, and that the county could not be subrogated to the position of the officer to whom the costs were paid, had not the costs been paid by the county.

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It is, therefore, my conclusion that a sheriff is entitled to collect from the county out of the county funds all costs due in felony cases, for mileage fees, fees for guards and for subpoenaing witnesses for the State, and that he would not be entitled to have such amount so paid by the county added to his insolvent bill, which might arise because of the reason of the disposition of misdemeanor cases. Of course in counties where there is located a city court, and where the act creating the city court makes a special provision for the disbursemEcnt of the fines and forfeitures, then such local act would control as to the fines and forfeitures arising in such city court. .It follows that the insolvent costs due sheriffs in misdemeanor cases should be set up along with the insolvent costs due other officers and that all of the officers should participate in the distribution of the fines and forfeitures pro rata according to their claim and that the county could not claim any portion of the fines and forfeitures until the insolvent costs of all officers entitled thereto had been fully paid.
COURTS-Sheriffs (Unofficial) The turnkey fee to which a sheriff is entitled is paid by the county.
November 29, 1945 Hon,. George F. Hatcher, Sheriff Wilkinson County Irwinton, Georgia
I am pleased to acknowledge your letter of November 26, in which you ask whether or not the Sheriffs' Fee Bill passed at the 1945 session of the Legislature requires turnkey fees to be paid by the county.
ThE: Act approved March 6, 1945 (Ga. L. 1945, pp. 221-224) provides in part as follows:
"For turning key on receiving prisoners in county jail ... $1.00 ... "The jail fees herein provided shall be paid monthly by the county, provided that local laws regulating county jails or fixing salaries for jailors or their fees shall not be repealed by this provision.
"All costs arising from services rendered in felony cases shall be paid from county funds, whether the defendant is convicted or acquitted. . . ."
From the above provisions of law, it is provided that jail feEcs shall be paid monthly by the county. The question as to whether or not turnkey fees are classified as jail fees was decided by the Supreme Court of Georgia in Lumpkin County v. Davia, Sheriff, 185 Ga. 393 (4), where the Court held as follows:
"Turnkey fees of 60 cents, 'for turning key on receiving, discharging; or conducting a prisoner before any court,' which moneys are part of the 'jail fees' to sheriffs as ex-officio jailers, allowed by the Code, Sections 24-2823, 77-103, are part of the 'costs' chargeable against defendants in criminal cases, collectible from them or from fines and forfeitures in insolvency cases, in the manner provided by the Code, Sections 27-2801 to 27-2806, inclusive, and Sections 27-2902 to 27-2914, inclusive; and a county is not liable therefor from general funds in the county treasury. Hall County v. Gilmer, 123 Ga. 173 (3), 176 (51 S. E. 307); Gordon County Commissioners v. Harris, 81 Ga.

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719, 720 (8 S. E. 427); Polk County v. Crocker, 112 Ga. 152 (37 S. E. 178); Davis v. State, 33 Ga,. 531, 533; Walton County v. Dean, 23 Ga. A.pp. 97, 98 (97 S. E. 561), and cit."
From the above provisions of law it appears that turnkey fees are classified as jail fees and under the provisions of the 1945 Act above referred to, such jail fees "shall be paid monthly by the county, provided that local laws regulating county jailors or fixing the salaries for jailors or their fees shall not be repealed by this provision."
COURTS-Sheriffs (Unofficial) A sheriff is entitled to only one fee for each arrest regardless of the number of off:nses charged against the prisoner.
January 24, 1946 Mrs. John B. Guerry House of Representatives Atlanta, Georgia
You have requested me to give you an unofficial opm10n interpreting the law in regard to sheriffs' fees, involving arrests of one defendant, where there are several separate and distinct charges against him at the time of the original arrest.
On September 11, 1945, I rendered an unofficial opinion to Sheriff W. T. Jolly, of Oglethorpe, Georgia, d:aling with a similar question. Sheriff Jolly requested me to unofficially approve or disapprove a statement he submitted covering the following two specific items:
1. Conducting prisoner before court to and from jail. 2. Costs for executing several warrants against the same defendant, but on separate charges. I stated in that opinion that: "It is my view that under Senate Bill 118, Act 275, of the 1945 General Assembly, you would be :ntitled to the $2,.00 fee for conducting the prisoner before the court to and from jail, and that you would be entitled to the $4.00 arrest charge against the same defendant, where each case involves a separate and distinct crime and arrest." This conclusion on my part did not mean that the sheriff could collect $4.00 on each charge against the same defendant, where only one arrest had been made. This conclusion assumed that a separate and distinct arrest of the same defendant had been made for each $4.00 fee. In this connection, I refer you to the following words in the above quoted conclusion: "where each case involves a separate and distinct crime and arrest.'' You can clearly see from these words that the opinion was intended to hold that a separate and distinct crime and arrest must be the basis for each $4.00 charge. A second or more arrests cannot be made on a person while he is in actual legal custody of the court, under the warrant originally executed.

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COURTS-Sheriffs (Unofficial) A special election may bf: held to fill a vacancy in the office of Sheriff which will occur by the resignation of the Sheriff to become effective on the day of the special election.
May 16, 1946
Hon. J. D. Wright Sheriff Appling County Baxley, Georgia
This will respond to your letter dated May 2, 1946 in which you request advice with respect to whether you can resign your office of Sheriff of Appling County, the resignation to be effective as of the date of the Democratic Primary or genual election so that the Ordinary could anticipate the vacancy which would occur and call an election for the purpose of filling the vacancy, which election would be held on the date of the Democratic Primary or general election.
The question which you ask apparently has never been decidf:d by the Appellate Courts of this State. It has given me considerable trouble and my mind is not entirely free from doubt,.
Section 24-2803, Georgia Code of 1933, provides: "Vacancies are filled and the after-proceedings are as in cases of vacancies in offices of clerks of the superior courts, except that in case there is a failure to appoint, as set forth in Section 24-2707, the coroner of the county shall act as sheriff; and if there is no coroner, the ordinary shall make a temporary appointment; and on failure of both, the sheriff of any adjoining county is authorized to act as sheriff until the ordinary shall make the appointment or there is an elf:ction." (Emphasis supplied) Section 24-2704 which relates to vacancies in the office of Clerks of the Superior Courts provides: "If a vacancy occurs (or will shortly), the ordinary of the county where it happens shall give notice in one or more of the public newspapers of said county (if any) and at the courthouse, and at three or more of the most public places of said county, 20 days previous to the day of election, which shall be appointed by him." Section 24-2704 was codified from an Act approved December 26, 1826 (Ga. L. 1826, p. 120). That Act dealt with the method of filling vacancies in the offices of Sheriffs, Clerks of the Superior and Inferior Courts and Tax Collectors. It did not include the parenthetical phrase " (or will shortly)" which now appears in Section 24-2704 of the Code. However, it is obvious from a t:onsideration of the Act of 1826 that the GenHal Assembly intended that the same provisions respecting the filling of a vacancy by a special election should apply to the offices of Sheriff and of Clerk of the Superior Court. The parenthetical language " (or will shortly)" now contained in Section 24-2704 of the Code appears to have first found its way into the statute law of this State in the Code of 1863. This Code, as well as certain of the subsequent Codes, and the present Code of 1933 were adopted by the General Assembly. That language, having now been adopted by the General Assembly, must be considered as a part of the statute law of this State. Verdery v. Dotterer, 69 Ga. 194, 197; Dale v. The State, 88 Ga. 552; Seaboard Air Line Rail-

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way v. Avaratt, 159 Ga. 876, 880. Since it was the clear intention of the General Assembly in the Act of 1826 to deal with both offices alike in providing for special elections to fill vacancies, it is my personal view that any change which might have been made by the codifiers in Section 24-2704 relating to vacancies in the office of Clerk of the Superior Courts would be equally applicable to vacancies in the office of Sheriff; especially in view of the provisions of Section 24-2803 that "vacancies are filled and the after-proceedings are as in cases of vacancies in offic:s of Clerks of the Superior Courts."
In view of the foregoing and the consideration that the provisions for an interim appointment are emergency measures to prevent the office from ceasing to function until the people may name a successor, it is my personal view that a special election might b: held to fill a vacancy which will occur on the effective date of the resignation. However, as stated, the conclusion is not free from doubt and it may be the safer course to make the resignation effective twenty days prior to the holding of the election with an interim appointment by the Ordinary under Section 24-2707 until the vacancy is fil!od by a properly qualified person elected in conformity with Section 24-2704. I know of no law which would prevent a special election being held on the same date as the State Democratic Primary or general election, if the laws with respect to each election art observed.
COURTS-Sheriffs (Unofficial) A sheriff is entitled to a fee for assisting in the arrest, or taking custody, of persons apprehended by the Georgia State Patrol.
August 14, 1947 Hon. E. P. Stapleton Stapleton & Stapleton Donalsonville, Georgia
I have your recent letter asking my opm10n as to whether the Sheriff of your county is entitled to a fee for arrests, when the arrest is made by a State Patrolman.
You refer to the opinion of the Attorney General, 1939-1941, pages 622 and 623. This opinion holds that a sheriff is not entitled to a fee for an arrest when the arrest is made by a State Patrolman. It refers to Code SE:ction 89-702 which provides:
"Any public officer who shall charge or take fees, not allowed by law, or for services not performed, shall, upon conviction or proof thereof be dismissed from office."
However, I desire to call your attention to the Act approved February 19, 1943, which Act was subsequent to the abovo opinion, and which Act provides in part:
"The Sheriffs of the several counties of this State be, and the same are hereby declared to be, entitled to an arresting fee, as now provided by law, in all cases in which the sheriff or his lawful deputies arrest, assist in arresting, or takes custody of any person charged with a crime, who has beon apprehended by the State Patrol and delivered to the sheriff or his lawful deputies. . . ."

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In keeping with the above statute, it would not be necessary for the sheriff actually to make the arrest in order to be entitled to an arresting fee, provided he otherwise qualified under the above provisions of the statute approved February 19, 1943.
COURTS-Sheriffs (Unofficial) (1) A sheriff is entitlE:d to a fee of $3 for making a return of nulla bona on a tax fi fa if it is collected from the defendant i.n fi fa. (2) A sheriff who refuses to accept a tax execution for levy unless the county agrees to pay the costs of a nulla bona return may be fined for contempt or removed.
September 15, 1!)47 Ron. W. G. Martin, Attorney Board of County Commissioners Lee County Leesburg, Georgia
I have your lE:tter of September 5th in which you request my opinion on the following questions:
"1. Is the sheriff, or other levying officer, entitled to demand of the county payment of costs on a tax execution delivered to him by the Tax Collector, and on which the sheriff, or other levying officer has entered a return of 'no property to be found'? Does Section 92-8002 apply in such cases, or is there any law to justify payment of costs t!J sheriffs for return of nulla bona?
"2. In the event the sheriff refuses to accept from the Tax Collector execution against tax defaulters, unless the county agrees to pay his costs for a return of 'nulla bona', what is the recourse against the sheriff, and by whom should proceedings be brought, if any?"
On March 19th, 1945, Ron. T. Grady Head, then Attorney General, in an unofficial opinion given to Ron. J. J. Forrester, Tax Collector of Lee County, said
" ... it is my personal opinion that the sheriff is entitled to a fee of $3.00 for making a return of a nulla bona on a tax fi fa., but the fe~:: must be collected from the defendant in fi fa. Section 92-8002 of the Code ... together with the decision in Keen v. Rouse . . . holds that the sheriff is not entitled to costs on tax executions unless th~:: same shall be collected from the defendant . . ."
The Code Section referred to reads as follows: "Tax Collectors shall be allowed a fee of 50 cents for issuing tax executions; but no tax collector, sheriff, or constable shall receive costs on said executions, unless the same shall be collected from the defendant." (Emphasis supplied). The decision in Keen v. Rouse, 44 Ga. 601, held as follows: "A sheriff is not entitled to costs on tax fi fas. whether for State or county taxes, unless the same be collected from the defendants." I have found no recent authority for a change in the previous opinion rendered by former Attorney General H~::ad, and therefore, it is RlY opinion

9G
that the sheriff or other levying officer may not demand payment from the county.
As to question 2 above, Code Section 24-2813 reads as follows: "It is the duty of the sheriff . . . 1. To execute and return the processes and orders of the courts, and of officers of competent authority, if not void, with due diligence, when delivered to them for that purpose, according to the provisions of this Code." This section presents a further question, "Is a tax collector an 'officer of competent authority'."? Code Section 92-7 401 states: "Executions for nonpayment of taxes, against persons who are not required to pay to the State Treasurer, shall be issued by the tax collectors of their respective counties as soon as the last day for payment shall have arrived, and shall be directed to all and singular the sheriffs and constables of this State." See Gladney v. Deavers, 11 Ga. 79, which states, "Tax Collectors have power in this State, to issue execution against defaulting tax payers, for the collection of taxes-which the Constables and Sheriffs are bound to execute and return." See also, County of Bibb et. al. v. Winslett, 191 Ga. 860, 879 and Georgia Railroad and Banking Company v. Hutchinson, 125 Ga. 762, 770. The above authorities clearly indicate that a Tax Collector is such an "officer of competent authority" as is contemplated by Code Section 24-2813. Code Section 24-2814 provides: "If any sheriff or deputy fails to comply with the provisions of section 24-2813, he shall be fined for a contempt, as the clerk of the superior court is in similar cases. Section 24-2724, as to removal, shall also apply to sheriffs." The provisions of the above quoted section provide an adequate remedy to a Tax Collector should a sheriff or other levying officer refuse to accept and act on the proper executions.
COURTS-Sheriffs (Unofficial) A sheriff is not entitled to an arresting fee for an arrest made by the county police.
November 13, 1947 Hon. Leonard Farkas Attorney at Law Albany, Georgia
I have your letter of November 3rd in which you request my opinion on the following question:
Is a sheriff entitled to the $4.00 fee for an arrest in cases where the arrest is made by the county police, and the sheriff does not participate in any way?
Code Section 89-702 provides: "Any public officer who shall charge or take fees not allowed by law, or for service not performed, shall, on conviction or proof thereof, be dismissed from office."

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This section seems to answer the question in the negative. However, there is one exception to which I would like to call your attention. The General Assembly of 1943 (Ga. L. 1943, pp. 571, 572) provided that sheriffs are entitled to an arresting fee when they assist in an arrE:st made by the Georgia State Patrol. I know of no other exception to the general rule.
COURTS-Superior Court Clerks (Unofficial) Superior court clerks are entitled to a per diem for attendance upon the court although no jury is empaneled.
November 21, 1945 Hon. Tom Bryan Clerk, Superior Court of Walker County LaFayette, Georgia
Your letter of November 13, with reference to whether the per diem pay as allowed by law for clerks of the courts is restrictE:d to attending a session of court at which a jury is empaneled, is hereby acknowledged.
May I call your attention to Georgia Laws of 1920, Page 117, quoted as follows:
"For each day's service in attendance upon the courts (formerly $3.00), $5.00."
The language above quoted doE:s not state upon what conditions a clerk is "in attendance upon the courts"; therefore, a reason~ble construction should be placed upon the clause.
In determining when a clerk is in attendance upon a court, it is first necessary to determine when is a clerk's services necessary to a court in transacting its business. I believe that a clerk of the court, under a reasonable construction of this particular clause in the Code Section, would be entitled to his per diem pay on any day when his services were necessary to the court.
A court may be in session even though, a jury is not empaneled. The word "session" means the time during the term in which the court sits for the transaction of business. A court is defined as "the persons officially assembled under authority of law, at the appropriate time and place, for the administration of justice". The word "term", when used with rE:ference to a court, signifies the space of time during which a court holds a session. A "session" signifies the time during the term when the court sits for the transaction of business. You may see that there is a clear distinction between a term of court and a session of court. A session of court is the time during which it actually sits for the transaction of judicial business, and hence terminates each day with the rising of the court. See Carpenter v. City of Birmingham, 221 Ala. 368; Dew v. Judge of Sweet Spring District Court, 3 Am. D. 639; In Re: Incorporation of Communities of Rockaway and Seaview, 153 Or. 382.
During the term of court a judge in this State may have many sessions. Suppose the court calls a session for the purpose of taking pleas of guilty in criminal cases, where the services of the clerk of the court are required. It would not be necessary to have a jury empaneled, but surely the clerk of the court would have to be in attendance ''upon the court" when the court calls a session for the purpose of taking pleas of guilty of those charged with

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crime. There: are other instances whereby a court may sit for the purpose of transacting judicial business when the empaneling of a jury would be necessary, but when it would be necessary for the clerk to be "in attendance upon the court". In all such instances, it is my unofficial opinion that the clerk can rightfully present the proper authorities with a bill for his per diem pay.
COURTS-Superior Court Clerks (Unofficial) (1) A superior court clerk is required to perform his statutory duties in criminal cases when the defendant files an affidavit in forma pauperis, regardless of the actmi:l ability of the defendant to pay the clerk's costs. (2) A person who knowingly and wilfully makes a false affidavit in forma pauperis is subject to criminal prosecution.
January 4, 1946
Hon. Fred T. Lanier Solicitor General, Ogeechee Circuit Statesboro, Georgia
You request an opinion on whe:ther the Clerk of the Superior Court is compelled to keep records in a criminal case, where the defendant files an affidavit in forma pauperis, and where it can be judicially established that he is not, because of poverty, unable to pay the clerk's costs.
Please permit me to call your attention to some of the code sections which apply to the question raised in your letter. They are as follows:
Code Section 6-1005 defines the operation of bills of exceptions as superdeas in criminal cases. In connE:ction with this code section, Sub-Section 2, of Code Section 6-1004, applies as to "affidavit in forma pauperis."
As to costs, see Code Section 6-1702. See Jones v. State, 31 Ga. App. 784. The clerk's duties, where one enters an appeal, and files an affidavit in forma pauperis, may be found in Code Section 24-2715, particularly sub-titles 14 and 15 thereunder. See in connection with this code section Code Sections 24-3301 and 24-3623. My unofficial opinion is, that where one files an affidavit in forma pauperis, it would be the duty of thE: Clerk to comply with the various code sections covering such matters, just as if the affiant had paid the costs; but he could at the same time, if it could be proved that the affiant was not actually, because of poverty, unable to pay such costs, ask that the person making such false affidavit, be indicted under Code Section 26-4001, 4003, 4004, and 4005. In the case of Hutchins v. State, 8 Ga. App. 409, the court ruled that an affidavit in forma pauperis should be made in such form as to subject one to prosecution for perjury if such affidavit could be proved to be false. This might be questionable. May. I also call your attention to the Constitution of Georgia, Article 6, Section 21 (Code Section 2-4801), which states: "The costs in the Supreme Court shall not exceed $10.00, until otherwise provided by law. The plaintiff in error shall not be required to pay costa in said court when the usual pauper affidavit is filed in the court below." (Emphasis supplied).

9u
Presiding Justice Lumpkin wrote a very interesting opinion in the case of Walker v. State, 112 Ga. 412. It is quoted below:
"There is no law traversing in the Supreme Court the truth of an affidavit made for the purpose of carrying up a case in forma pauperis. One who knowingly, wilfully and fals~:ly makes such affidavits is, however, subject to criminal prosecution."
I believe the same rule would obtain as to a traverse in the court below. If, however, it could be judicially established, such as by a conviction for falsely swearing, or for perjury, before the case was ultimately d~:termined in the Appellate Court, I believe the opposing party could move for a dismissal of the case then pending in the Appellate Court. See the casE: of Summerour v. State, 172 Ga. 560; Wade v. White, 163 Ga. 666.
I believe that such procedure, if resorted to, would remedy the ~:vil which the court took notice of in the 112 Ga., supra, and which, no doubt, exists to an even greater degree today.
COURTS-Superior Court Clerks (Unofficial) A superior court clerk is not entitled to a fe~: of fifty cents for each juror summoned by the sheriff.
February 19, 1946 Hon. J. H. Simpson Clerk, Superior Court Millen, Georgia
You requested that we construe a part of Act No. 601 passed and approved at the fifteen day session of the General Assembly. Your specific question is: "Does the Act authorize me to charge and collect the sum of fifty cents (50) for issuing each summons to jurors to appear and serve as such at various t~:rms of the Court'?"
The part of the Act to which you refer provides that the Clerk shall receive for issuing each summons fifty cents (50). I do not understand that the Clerks of the Court issue summons for the juries. Sections 59-203, 59-206 and 59-701 of the Code of 1933 provide for the drawing and summoning of jurors. The Judge of the Court draws the name of the jurors from the jury box. Within 30 days after the Judge has drawn the jury, the Clerk of the Court is required to issue and deliver to the sheriff a precept containing the names of the persons drawn for jury service. Upon receipt of the precept the sheriff summons the jury. The prec~:pt is a command or mandate in the nature of a writ issued by the Court, directed to the sheriff commanding him to summons the jurors for service. It is not a summons and, therefore, in my opinion the Clerk would not be entitled to a fee of fifty c~:nts (50) for each juror summoned by the sheriff.
Section 24-2822 of the Code defining sheriffs' fees provides that the sheriffs shall be paid a fee for summoning jury at or during any t~:rm of city or superior court, each jury $10. The Supreme Court in Baggett v. Barrow, 166 Ga. 700, defines the term "each jury" to mean each Grand Jury and each petit jury drawn under the provisions of Sections 59-203, 59-205, 59-701, 59-710 and 59-713 of the Code. By an Act of 1943 (Ga. L. 1943, p. 591)

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Section 24-2823, Cumulative Pocket Part of the Annotated Code, it is provided that the sheriffs shall receivE: fifty cents (50) for each juror summoned as a tales juror, not to exceed $10 during any term of court.
The provisions of the statute providing for the payment to the sheriff for summoning jurors bears out my view that the Clerk does not issue sum~ mons for jurors and, therefore, is not entitled to fifty cents (50) for summons issued as provided for in Act No. 601.
COURTS-Superior Court Clerks (Unofficial) Code Sec. 24-2726 authorizes superior court clerks to record certificates of service issued to officers of the armed sEorvices as well as discharge certificates issued to enlisted personnE:l.
May 22, 1946 Hon. J. E. Launder, Jr., Director Veteran Civilian Service Center Augusta, Georgia
Your letter of May 20th received. You request that I advise whether or not it is legal to record a certificate of public service given to officers of the Army and Navy upon their release from military service.
Section 24-2726 of the Code of 1933 is as follows: "The county commissioners or other officers having charge of the county's business of each county shall provide for the clerk of the superior court in said county, a book or books in which ht shall record and index the discharge certificates of all ex-service men resident of the county showing their discharge f~om the military service of the United States, and they shall from time to time be furnished such additional books for said purpose as may be necessary. Every entry shall be signed by the clerk and dated with the year and day and hour accurately stated, and a certificate of registry shall be by thE: clerk indorsed on each discharge recorded. The term "military service" as used herein shall also include the term "naval service". Any records heretofore made by the clerk of the superior court in substantial compliance with this law shall be considered as recorded under the terms of this law." This Section provides for the recording of the discharge certificates of all ex-servicemen in the county of their residence. It is provided that they shall be recorded in the officEo of the clerk of the Superior Court of the county. I am unable to find any law with reference to recording the same in the ordinary's office. Enlisted personnel of the different branches of the military service are given discharges, and officers are given certificates of service, which stand in lieu of the discharge givEon enlisted men. I construe the provisions of Section 24-2726 of the Code to be broad enough to include both. I do not find any law, either State or Federal, which makes it a violation of the law to record the certificate of service given officers. The handbook "Going Back To Civilian Life" distributed by the War and Navy DE:partments alike to enlisted men and officers, instructs such personnel in regard to the discharge or certificate in the following languagE:: "Since your discharge certificate (or certificate of service) is a valuable

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docket, you will be wise to have it recorded. This means having an exact copy made in the official record books of the county in which you live. To do this, take your discharge certificate to the county clerk, county recorder, or other appropriate official at your local county courthousEo."
From the above it will be seen that the Federal Government encourages the recordation of the certificate of discharge.
CRIMES AND PUNISHMENT-Conspiracy Om: who is incapable of committing an offense may be guilty of the offense by participating in a conspiracy..
January 8, 1946 Hon. Edward B. Everett, Chairman State Board of Pardons and Paroles
The question propounded by you seems to be as follows: May one who has conspired with another to commit a crime, who, being apprehended by the officers immediately prior to the commission of the offense, be held criminally responsible for the acts occurring after his arrest, which acts were perpetrated by the other conspirators in pursuance of the criminal enterprise?
In Georgia, there is no crim: of conspiracy. The proving of conspiracy in a criminal case in this State is an incident to proving some other crime in which several have taken part. See the cases of Lumpkin v. State, 176 Ga. 446; Cook v. State, 22 Ga. App. 770; Chance v. Sto.te, 156 Ga. 428.
In a well considered opinion written by Justice Fish, there is a cl:ar definition of both civil and criminal conspiracies. This case is Brown & Allen, et al v. Jacobs Pharmacy Co., 115 Ga. 429. In 15 C. J. S. 1057, Par 35, it is stated:
"A conspiracy once formed, continues to exist until consummated, abandoned, or otherwise terminated by some affirmative act.
"Withdrawal from or abandonment of a conspiracy by some affirmative act prior to the overt act, is required to preclude a prosecution thereon." See the case of Dill v. State, 33 S. W. 126.
As to when the criminal enterprise ends and as to whether one can be guilty of an offens: after it has become impossible for him to commit the offense, may I refer you to the case of Tanner v. Sta~e, 161 Ga. 192, and cite to you more particularly the lower part of page 198 through page 199. In the particular case, the original conspiracy existing between the parties was to bring about results which were highly criminaL However, the mere presence of a party at the scene of the commission of a crime at the moment of its perpetration, would not of itself authorize a jury to find th: person who was thus present guilty of consent and concurrence in the perpetration of the crime, without other evidence of his aiding and abetting the actual perpetrator of the crime, or other evidence of his having participated in the felonious design of the actual perpetrator. The convt-rse would be true also, however; that if it could be established by the evidence that one who was not at the moment present aiding and abetting, but who had participated in the original felonious design, he could be held accountable for all of the acts resulting as a natural consequence of the original criminal enterpris:. It ha~

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been held that once a conspiracy to do a criminal act has been established, it does not terminate upon the actual perpetration of the offense; but that conspiracy continues to exist during the escape and on down until the spoils of the ent~:;rprise have been divided. It has been held that the enterprise continues to exist so long as the conspirators are concealing the crime.
In this State, questions of law are determined by the court; that is to say, questions as to whether or not there is enough evidence to permit a case to go to the jury, and as to whether or not there is sufficient evidence under the allegations made in the indictment for the case to go to the jury; but after a case goes to the jury, it is the province of the jury to determine the questions of fact and the questions of law as they apply to the facts. The existence of the conspiracy is a matter for the jury to determine. The accused's connection with the conspiracy is a matter for the jury to determine. The time when the accomplishment of the crime has been achieved is a question of fact to bE': resolved by the jury; and each category is weighed by its own facts. See in this connection the case of McDonald v. U. S., 189 F. 2d
128; 301 u. s. 697.
It has been held in Georgia that one who is incapable of himself committing the offense may be guilty of the offense. This, of course, may be as an accomplice or one who was participating in a conspiracy. This has been held in Bishop v. The State, 118 Ga. 799.
I trust that from the authorities above stated, you will be able to determine the question presented in your letter.
CRIMES AND PUNISHMENT-Firing Woods, Lands or Marshes (Unofficial) The statute prohibiting the firing of woods, lands or marshes except during certain months and after notice to adjoining occupants does not apply to a farmer who, in the usual course of husbandry, sets a fire on a small area of land under cultivation or used as a pasture.
October 19, 1945 Hon. M. E. Cheney Athens, Georgia
Your letter of October 15, 1945, in which you request me to advise you concerning the laws of Georgia which pertain to the setting of fires on small acreages of private property, is acknowledged.
Code Section 43-125 of the CodE': of 1933 is as follows: "The Director of Forestry, with the approval of the commissioners, is authorized to appoint fire wardens to enforce the provisions of the fire laws of the State, and the wardens so appointed, and the fire-fighting crews under their direction, may enter upon any land for the purpose of preventing and suppressing fir~:;s and enforcing the provisions of the fire laws of the State. Any fire burning uncontrolled on any forested cut-over, brush or grasslands is hereby declared to be a public nuisance, by reason of its menace to life and property. Any person, firm or corporation responsible, either for the starting or the assistance of such fire is hereby required to control or extinguish it immediately, and if such person, firm or corporation shall refuse or neglect to do so, any organizE':d fire suppressing force may suppress the nuisance thus

103
constituted by controlling and extinguishing the fire, and the cost thereof may be recovered from said responsible person, firm or corporation. The said director, with the approval of the commissioner, is hereby empowered and authorized to fix definite periods of time, not to exceed 30 days in any calendar year, during which woods or uncultivated lands, or marshlands may be burned over, and to promulgate the same."
Code Section 26-3601 of the Criminal Code: "No person in a residence of the county where the firing is done, holding lands therein, or domains thereon, outside any incorporated town, shall set on fire any woods, lands, or marshes, nor shall such person do" so, except between the first of January and the first of March, annually. When such persons shall desire to set fire within said time, he shall notify all persons who occupy lands adjoining him by res~dence thereon, or cultivation or enclosure of any portion of the tract or settlement, of the day and hour of the firing, at least one day prior thereto. Such notice need not be given if, on a sudden emergency, due caution should require firing to render one's premises safe. Any person setting fire in violation of this section shall be guilty of a misdemeanor." Section 26-3602: "Persons who, either by themselves or agents, permit fire to get into the woods, lands or marshes, through neglect, are within the meaning of the preceding section." In construing the above code sections, in the case of Acree v. The State, 122 Ga. 145, Justice Evans, speaking for the Court, stated: "The above code section was not intended to apply to a farmer who, in the usual course of husbandry, sets fire to weeds, brush, grass or stubble on a small area of land which is under cultivation, or which he uses as a pasture." Also in the same opinion, Justice Evans stated: "Look into the history of this legislation and the conditions existing at the tim: of its adoption. It is evident that the General Assembly never intended to _prohibit the burning of rubbish or lands in cultivation, of limited areas, during any season of the year, when it became necessary in the usual course of husbandry to prepare the land for the planting of the crops, or for pasturage, or for any other purpose incident to ordinary farming operations." At the 1943 session of the General Assembly, a criminal statute was enacted, being Sec. 26-3603 of the Annotated Code, with respect to wilfully and maliciously setting fire to lands, woods, or marshes. This Act made it a felony for persons to violate the above quoted code sections wilfully and maliciously.
CRIMES AND PUNISHMENT-Hitch-hiking (Unofficial) Hitch-hiking is not prohibited by Stat: law. December 3, 1947
P.F.C. Alan M. Seaman 9th Infantry Division Fort Dix, New Jersey
Your recent letter concerning hitch-hiking in the State of Georgia addressed to the Department of Public Safety has been referred to me by that agency.

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There is no StatE: law in Georgia prohibiting hitch-hiking. There are many municipalities in this State which have local ordinances, however, which prohibit hitch-hiking in_ the corporate limits of the municipality.
CRIMES AND PUNISHMENT-Lotteries (Unofficial) (1) The keeping, maintaining or employing of slot machines is a misdemeanor. (2) The keeping, maintaining or employing of pinball machines is not illegal where they are operated for the purpose of amusement and no gaming or gambling is connected with their operation.
March 18, 1946 Hon. P. L. Harrison, Senior Underwriter The Aetna Casualty and Surety Company Atlanta, Georgia
Your letter of March 14th received. You request that I advise whether or not slot machines and pinball machines are lE:gal in this State.
Section 26-6502 of the Code provides as follows: "Carrying on a lottery. Any person who, by himself or another, shall keep, maintain, employ or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor. In the case of Chappell v. Stapleton, 58 Ga. App. 138, Justice Sutton, speaking for the court, stated: "Slot machines are designed and used for gaming and gambling purposes, and ordinarily cannot be used for any lawful purpose. It is apparently conceded that the slot machines here involved were being operated in violation of law when they were seized. They were contraband and subject to be held by the officers for evidence against the owner or operator, or to be confiscated and destroyed. Their dE:sign and purpose were for an illegal, not a legal use." In the case of Elder v. Camp, 193 Ga. 321, Justice Jenkins, speaking for the court, stated: "Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or dtvice, for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor. An apparatus known as a slot machine, by which a person depositing money therein may, by chance, get directly or indirectly money or articles of value, worth either more or less than the money deposited, falls within the purview of this section of the Code, and cannot be treated as one kept only for amusement and under thE: quoted terms of the statute, it is made unlawful merely to 'keep' such a 'device for the hazarding of any money', and it is not necessary to show a further violation by maintaining, employing, or carrying on such a 'scheme or device' by active operation." From the above it will appear that slot machines have been declared to be illegal and subject to confiscation. I do not find any case dealing with pinball machines. Any scheme or device operated for the hazarding of any monE:y or valuable
thing as r 1 . Yided in Section 26-6502 of the Code would be illegal. Where

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pinball machines are operated for the purpose of amusement and the player deposits money in the machine not expecting to get any return for the money other than the plE:asure of playing the same, and there is no gambling connected with its operation, such a machine would not within itself be illegal. If the same was operated by the player with the chance of receiving something more or less than the amount that he deposited, and gambling is carried on in connection with the operation of the machine, such would be il!E:gal. To determine the legality of a pinball machine, the facts of its operation would have to be considered.
CRIMES AND PUNISHMENT-Pollution of Waters (Unofficial) (1) The pollution of a non-navigable water-course so as to lessen its value to a lower riparian owner is a tresspass upon his property. (2) Floating sawdust in a stream is a misdemeanor in those counties where the statutE: has been recommended by two grand juries. (3) Use of a destructive substance in the waters of the State for the purpose of killing fish is a misdemeanor.
October 2, 1945 Hon. Earl Wallace, Director Division of Game and Fish Frankfort, Ky.
Your letter of September 26th received. You request that I furnish you copies of any law of the State of Georgia having regard to pollution of rivers, streams and lakes of the State.
The State has not enacted any extE:nsive law in regard to .the subject matter. Section 105-1407 of the Code of 1933 provides as follows:
"The owner of land through which nonnavigable watercourses may flow is entitled to have the water in such streams come to his land in its natural and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other riparian proprietors; and the diverting of the stream, wholly or in part, from the same, or thE: obstructing thereof so as to impede its course or cause it to overflow or injure his land, or any right appurtenant thereto, or the pollution thereof so as to lessen its value to him, shall be a trespass upon his property."
Section 26-3701 of the Code of 1933 makes it unlawful for any one to float sawdust in any of the streams of the State. The violation of this section by any person or corporation is punished as for a misdemeanor. The law does not go into E:ffect in any county until it has been recommended by two Grand Juries.
Section 45-507 of the Code of 1933 makes it unlawful for anyone to use dynamite or any other explosive or destructive substance in any of the waters of this State for the purpose of killing fish, and makes it a misdemeanor. There is a provision to this Section that the section shall not apply to mills, dye plants or other industrial works of this State emptying refuse into waters necessary in the operation of such plants.
From thE: above you will see that the State of Georgia has very little law with any teeth regulating the streams against pollution.

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CRIMINAL PROCEDURE-Fines and Forfeitures

A forfeited bond in habeas corpus proceedings is paid into the county

treasury.

October 1, 1947

Hon. M. E. Thompson

Acting Governor of Georgia

I have your memorandum of September 25, and the attached letter from

T. N. Holcombe, Ordinary, Lowndes County, in which you request my opinion

on the following question:

"Wbat is the proper disposition of a bond put up for the appearancE: of

a prisoner in a habeas corpus proceeding which is forfeited by the failure of

thE: prisoner to appear."

Apparently Mr. Holcombe was proceeding under Code Section 50-103,

which reads as follows:

"Petition, how verified and to whom presented.-The petition must be

verified by the oath of the applicant or some other person in his behalf, and

may be presented to the judge of the superior court of the circuit where the

illegal detention E:Xists, who may order the party restrained of his liberty to

be brought before him from any county in his circuit; or it may be presented

to the ordinary of the county, except in cases of capital felonies or where a

person is held for extradition under warrant of the Governor."

Code Section 27-2902 reads as follows:

"Moneys from forfeitures and fines to be paid into the county treasury.-

The officers of the several courts, including the prosecuting officers, shall

pay into the county treasury of the county where said court is held all moneys

arising from fines and forfeitures by them collected, and, on failure to do

so, shall be subject to rule and attachment, as in case of defaulting sheriffs.

No such officer shall be required to pay into the treasury, as aforesaid, any

such moneys, until all the legal claims on such funds held and owned by said

officer bringing the money into court, and the costs due the justices and con-

stables in the particular case by which the funds for distribution were brought

into court, shall have been allowed and paid."

It is my opinion that the above section covers the instant situation and

that the proper disposition of the forfeited bond would be to pay it into the

County Treasury.

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CRIMINAL PROCEDURE-Sentences
(1) A Court may not change, modify or increase a sentence after the term at which it is rendered. (2) A sentence which provides that it may be served on probation retuins the matter within the breast of the Court until a final judgment of discharge or a revocation of the probation. (3) An order revoking a probation may be changed or modified during the term at which it is rendered, regardless of whether the defendant has been delivered to the Director of Corrections.

Hon. Francis R. Hammack, Director State Department of Corrections.

November 5, 1945

Your letter of October 22nd is acknowledged. For the purpose of organizing the questions propounded in your letter, I will restate in narrative form the facts which provide the background for the questions propounded. They are as follows:
The defendant was sentenced on April 21, 1945, at the April Term of a Superior Court. His sentence consisted of a $200,.00 fine and a 12 months probationary sentence. The defendant paid the $200.00 fine and began serving the twelve months sentE:nce on probation. On September 27, 1945, after the April Term had expired, the Judge revoked the probationary sentence and the defendant began serving the balance of the twelve months on the public works. On October 13th, during the same term at which the probationary sentence was revokE:d, the Court modified his order "revoking the probated sentence," and directed that the defendant be again permitted to serve the balance of his term on probation.
The questions raised by the various orders of the Court are as follows: (1) May a Court, after the term at which a defendant is sentenced, change, modify, or increase the sentence? (2) Does a Court, where it provides that a sentence be served on probation, by such provision extend the term of Court with respect to such sentence to continue during the whole duration of the sentence? (3) Is an order placing a defendant on probation a final judgment, or is it rather an interlocutory judgment in the nature of a conditional order placing the defendant undE:r supervision of the Court for his reformation, to be followed by a final judgment of discharge or a final judgment of sentence if the conditions of the probation are violated? (4) Does a Court lose jurisdiction over the subject when the execution of the sentence has begun and all of the conditions required under Code Sections 77-313, 77-339, 77-344, and 77-345, have been complied with? In answer to Question 1, it is my opinion that a Court may not, after the term at which a' defendant is sentenced, change or modify or increase the sentence unless it is for the purpose of correcting a clerical error, or for the purpose of remolding the sentence to make it speak the truth. In answer to question number 2, it is my opinion, that where a Court provides that a sentence be served on probation, such provision keE:ps the matter within the breast of the Court until there is a final judgment of discharge or until the conditions of the probation are violated.

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It is my further opinion that where a judge entertains a motion for revocation of a probated sentence, that any order passed with respect to the revocation can be changed or modified by the Judge during the term at which such order is entered or passed.
In answer to Question Number 3, it is my opinion, that an order placing a defendant on probation is not a final judgment, but is rather an interlocutory judgment in the nature of a conditional order placing the defendant under the supervision of the Court for his reformation, to be followed by a final judgment of discharge if the conditions of the probation are complied with, or by a final judgment of sentence if the conditions are violated.
In answer to Question Number 4, it is my opinion, that the Court does not lose jurisdiction over the subject where the execution of the sentence has begun before the term expires, and where the conditions required under the Code Sections 77-313, 77-339, 77-344, and 77-345 have been complied with.
AUTHORITIES: It is well settled in Georgia that during the term at which a judgment or a decree is entered, the record remains within the breast of the Court and the Court may, at any time during the term, amend it or set it aside on its own motion, or, for good cause shown, as justice and right in the case seem to require. The Court retains jurisdiction of the parties and subject matter of the litigation until the end of the term, and the judgment or decree does not become final or pass beyond its control until the term expires, at which the judgment, order or decree was enttred. See 11 Cyc. 732.
A sentence in a criminal case is not the act of the Court, but is the judgment of the law pronounced by the Court declaring to the accused the legal consequences of his guilt, once it has been legally established. In the case of Gobles v. Hayes, 194 Ga. 297, and more particularly on page 300, the Supreme Court of Georgia stated:
"The Superior Court, as a general rule, has plenary power over its orders and judgments during the term at which they are rendered and may be amended, corrected, or revoked for the purpose of promoting justice.
"During the term at which a judgment is rendered, it is within the breast of the presiding Judge and it may be vacated upon proper cause, but after the term has expired, the judgment is upon the roll and is not subject to the re:view or revision by the trial court."
In Pulliam v. Jenkins, 157 Ga. 18, the Court ruled that the Court has power at a subsequent term in a direct proceeding against defendant, after due notice and hearing, to correct a paper inadvertently signed and entered upon the minutes of the Court, so that it should conform to the original sentence as orally pronounced by the Court. See, in this connection, Merritt v. The State, 122 Ga. 752; Tyler v. The State, 125 Ga. 46.
In 15 Am. Jur. 487, it is said: "If, through inadvertence or oversight on the part of the Court, sentence is not pronounced during the term at which the case is tried, or if the Clerk neglects to enter a sentence duly pronounced, the Court may impose sentence at a subsequent term." A Judge, after the term at which sentence was imposed, cannot modify the sentence that was formerly entered as it was intended to be, but a Judge

109
after the term at which sentence was passed, can correct an erroneously written sentence inadvertently signed by the Judge and placed on the minutes of the Court, so as to make the sentence conform to the sentence orally pronounced by the Judgf: from the bench.
Authorities for answers to questions 2 and 3:
Let us look first at the Code Section under which the Judge has the power to revoke a probated sentence. Code Section 27-2705:
"Every person placed on probation under the provisions of this law shall, during the term of his release without the confinE:s of the "chain gang, jail or other place of detention, observe all rules prescribed for his conduct by the court, report to the probation officer as directed, and maintain a correct life. In case of failure to meet any of these requirements, and at any time prior to the final disposition of the case of any probationer in ::he custody of a, probation officer, the officer may bring him without warrant before the court or the court may issuE: a warrant directing that he be arrested and brought before it. When such person is brought before the court, the court after due examination may revoke its leave to the probationer to serve his sentence outside the confines of the chain gang, jail or other place of detention." (Emphasis supplied).
You will note particularly the language usf:d in the sentence of this code section. I quote,
" ... and at any time prior to the final disposition of the case of any probationer , . ."
This clearly indicates that the Legislature in passing this statute did not intend for an order placing one on probation to become a final judgment. The fact is that the Legislature intended that a probationary sentence only becomes final upon the happening of two contingencies; one being tht actual service of the probationary sentence, and a final order of discharge; the other being that while the probationary sentence is being served outside the confines of a chain gang, or other place of detention the probationer, violates some condition of his probation, in which event thE: Judge exercises the power herein contained and revokes said probationary sentence and imposes a final judgment under the terms of this statute.
Therefore, it is evident that where a Court imposes a sentence of probation upon a defendant, that it is not a final judgment. In the case of Commonwealth v. Smith, (Pa.) 198 A. 812, the Court stated, in interpreting a clause in the law authorizing probation, which is similar to our own statute, that
"An order placing defendant on probation is not a sentence, but is rather in effect a suspension of the imposition of sentence."
It states further that the final judgment in a criminal case is a sentence. Furthtr quoting the same case:
"An order placing a defendant on probation is not a final judgment, but is rather an interlocutory judgment in the nature of a conditional order placing the defendant under the supervision of the court for his reformation, to be followed by a final judgment of discharge if the conditions of the probation are complied with or by a final judgment of seontence if the conditions are violated."

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The authorities for Question 4: In the case of Gobles v. Hayes, 194 Ga. 297, the Court stated: "The power of the Superior Court in a criminal case to amend the sentence during the same term of the Court during which it is imposed, by shortening the term of imprisonment, is not lost by entry of the defendant upon the serving of his sentE:nce. The jurisdiction of the trial court as to amendment of sentences is not affected by Code Section 77-313 relating to the authority of the Prison Commission." (State Department of Corrections) "Under Section 77-313 a prisoner does not come under the exclusive jurisdiction of the Prison Commission." (State Department of Corrections). The function of the Department of Corrections under CodE: Section 77-313 is merely to enforce sentences that are lawfully imposed, and the question as to whether a court is acting within its jurisdiction in modifying a sentence is in no way affected by this Code Section. I. am, therefore, of the opinion that the Court imposing sentence upon the defendant had power, after the term had expired, and in conformity with Code Section 27-2705, to inquire into and to revoke a probationary sentence imposed at a prior term. I further believe that the Court retains jurisdiction over a probationer during the term of his probationary sentence for the purpose of changing or modifying the order placing a defendant on probation during the whole of the probationary term imposed, or until the Court finds that the conditions of probation have been breached. I also believe that in the event of the Court revoking a probationary sE:ntence and ordering a defendant to begin serving the remainder of the sentence in the chain gang or other place of detention, such order of revocation may be modified, changed, vacated, or corrected during the term at which such order of revocation is signed. Therefore, the Judge who, on September 27, 1945, revoked the probationary sentence of thE: defendant, had authority to pass such orde1~. He had . authority, also, to pass another order on October 13th, amending his order revoking the probated sentence, because such order was passed during the same term.

CRIMINAL PROCEDURE-Sentences Where a sentE:nce gives the defendant a specified time within which topay a fine, or a term to serve in default thereof, the defendant may not be released upon payment of the fine after the specified time.

Hon. Francis R. Hammack, Director

December 1, 1945

State Department of Corrections

Your letter of NovembE:r 30, in which you request my opinion as to the

interpretation of the sentence imposed on the named defendant in Coweta

County September 28, 1936, is acknowledged.

The facts are as follows:

The defendant was sentenced to pay a fine of $60.00 on September 28,

1936, or to serve six months in default thereof, and was given five days in

which to pay the finE:. The defendant did not pay the fine within five days.

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and was sent to the public works camp, where on November 24, 1936, he

escaped and remained a fugitive from justice until recently, at which time

the defendant tendered the $60.00.

The sentence upon which the defendant claims that he should be released

upon the payment of $60.00 and the costs of prosecution reads as follows:

"Whereupon it is considered, adjudged and sentenced by the Court here,
that the defendant, *' * *, do pay a fine of $60.00, including the costs of

prosecution; or in default thereof, that he work in a chain gang, or in the

public works, or on such other works as the county authorities of Coweta

County may employ the chain gang, for and during the term of six months,

to take effect from this date; that the defendant is given five days in which

to pay the fine, during which he is committed to the common jail of Coweta

County."

I am requested to give my official interpretation of this sentence, and

to answer the question as to whether this defendant should be released upon

paying the $60.00 fine.

In the case of Dunaway v. Hodge, 127 Ga.. 690, it was held:

""Where a misdemeanor convict is sentenced in the alternative, directing

service on the chain gang for 12 months, and to be discharged on paying of a

fine, it is the duty of the court to prescribe a reasonable time in which to pay

the fine, and when this is not done, the law will allow a reasonable time for

such payment."

The Penal Code provides that: "Every fine imposed by the court shall be paid immediately, or within

such reasonable time as the court may grant."

This section is not mandatory with reference to fines which are within

the discretion of the court, as in the case of alternative punishments after

conviction of misdemeanors; yet it may be borne in mind, with a view of

determining the policy of the law. In misdemeanor cases, it is within the dis-

cretion of the court as to whether a fine may be imposed, to operate as a

discharge from prison or work on the chain-gang. It is but reasonable that

the court should have like discretion to grant time to the convict with which

to pay the fine imposed. It affirmatively appears from the sentence that it

was not the intention of the court, in any event, to require immediate pay-

ment; but the court permitted a time of five days within which the defendant

should pay the fine and permitted the defendant to remain in the common

jail of Coweta Georgia for that space of time, evidently to permit him the

opportunity of raising the $60.00 fine. It appears that the defendant did not

pay the fine within the five-day period specified by the court in the sentence,

and that he did go to the public works camp of Coweta County and serve up

until November 24, 1936. The court, exercising its discretion, provided a

definite future time within which the defendant should be permitted to pay

the fine and be discharged. Since the defendant failed to pay the fine within

the specified time allowed by the court, he should be compelled to serve out

the unserved portion of his sentence.

It is my opinion that the defendant should be compelled

un-

expired portion of his sentence, he having failed to e ci~ttaW~e~jl ge

granted him by the court for paying the $60.00 fine ~~ five days !~in

September 28, 1936.

Y: S

UDRARL-

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CRIMINAL PROCEDURE-Sentences (Unofficial) A court may not reserve the right to change or modify a sentence after the expiration of the term at which it was rEndered.
February 13, 1946 Hon. Francis R. Hammack, Director State Department of Corrections
Your letter of January 21 received. You request an opinion as to whether a Court can change or modify a sentence after the term at which it was imposed and after the person sentEnced had begun the execution of sentence.
The cases in Georgia deal with the Court's authority to change or modify a sentence or judgment after the term at which it was rendered when the sentence itself contains no language that the Court reserves the right to change or modify it. What effect this language would have on the sentence or judgmEnt after the term expires at which it was rendered has not come before the Georgia Appellate Courts for adjudication.
First, when one commits a crime and outrages moral and legal standards, the State is an interested party and its action against the offending delinquent is in the name of the State. We in Georgia have enacted a vast body of statutory laws dealing with persons sentenced for crime and we have prescribed the manner by which they are dEalt with.
We have a Pardons and Parole Board and its duties prescribe how and in what manner one becomes eligible for a pardon or parole.
We have a Department of Corrections and the statutes prescribE:: the time at which a sentence begins to run and how such time is computed. The same statutes direct that the Clerk of the Court forward the record of sentence imposed upon persons immediately to the Department of Corrections. This is true whEther the person sentenced has committed a felony or a misdemeanor. Persons so sentenced become the charges of the Department of Corrections and are under their custody and control. Some of these statutes will be hereinafter cited.
Needless to say if a Court is permitted to retain jurisdiction over the sentences imposed during the whole pEriod of such sentences, the effect of such power and authority possessed by the Court rendering such sentences would be to create confusion, destroy uniformity in administering our laws and to nullify our whole system of pardons and paroles and prison administrative laws. Such surely was never the intention of the legislature and it takes a strained construction of the law to imply that such power resides in the breast of a Court.
We may ask the question: Why were such statutes ever creatE::d? The answer is self evident. They were enacted to create uniformity and to obviate an apparent evil that existed in our State prior to their adoption.
It is well settled in Georgia that during the term at which a judgment or a decree is enttred, the record remains within the breast of the Court and the Court may, at any time during the term, amend, modify, or set aside (lU its own motion, such judgment or decree. The Court retains jurisdiction of the parties and subject matter of the litigation until the end of the term, and the judgment, decree, or sentence doE::s not become final or pass beyond its

113
control until the term expires, at which the judgment, order or decree was entered. See 11 Cyc. p. 732.
A sentence in a criminal case is not the act of the Court, but is the judgment of the law pronounced by the Court declaring to the accused thE: legal consequences of his guilt, once it has been legally established. See Gobles v. Hayes, 194 Ga. 297, and more particularly the language used by the Court on page 300; Pulliam v. Jenkins, 157 Ga. 18; Merritt v. The State, 122 Ga. 752; and Tyler v. The State, 125 Ga. 46.
A judge, after the term at which sentence was imposed cannot modify the sentenc; that was formerly entered, but a judge after the term at which sentence was imposed can correct an erroneously written sentence which was inadvertently signed by the judge and placed on the minutes of the Court, so as to make the sentence conform to the sentence orally pronounced by the judge from the bench. See 15 Am. Jur. p. 487.
The question here presented is what effect does the language, "The Court again reserv;s the right to modify this judgment at any time before this sentence is completed", have upon the Court's authority to change and modify the sentence after the term at which it was imposed has expir;d?
Code Section 27-2505 of the Code 1933: "It shall be the duty of the several judges, in the imposition of sE:ntence for violation of the penal Jaws, to specify that the term of service under such sentence shall be computed as from the date of sentence, provid;d the defendant is confined in jail or otherwise incarcerated, and has no appeal or motion for new trial pending, except in such cases as may be appea];d to the State Court of Appeals or the Supreme Court, in which event the sentence shall be computed from the date the remittitur of the appellate court is made the judgment of the Court in which the conviction is had, provided the defendant is not at liberty under bond, but is incarcerated or in custody of the sheriff of the county where convicted."
Code Section 77-339 of the Code of 1933: "The clerk of the court wherein any person may be convicted and sentenced for violation of the criminal Jaws of this State shall notify the Prison Commission immediately thereafter, by mail, of the conviction and sentence, together with a description of the person sentenced, which shall give thE: name, crime, sentence, age, sex . . and the disposition made or to be made of said person ...". Code Section 77-344, Code of 1933 amended in 1937: "The Director of Corrections shall have an exclusive power and authority to determine, control, and direct where and in what camp, chain gang, penitentiary, or penal institution, each and every person who has been convicted of any misdemeanor or felony in any court of this State shall serve the sentence imposed upon him, except where otherwise specially provided by Jaw". (Emphasis supplied). In construing the above cited statute, your attention is again called to the case of Gobles v. Hayes, 194 Ga. 297, wher;in the Court stated:
"The power of a superior court in a criminal case to amend a sentence during the same term of the court in which it was imposed, by shortening the period of imprisonment, is not lost by entry of the def;ndant upon the

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service of such sentence. The jurisdiction of a trial court as to the amendment of sentence is not affected by Code Section 77-313 (:which delegates to the State Department of Corrections the supervision and control of convicts), relating to the authority of the State Department of Corrections."
Under Section 77-313, a prisoner does not come under the exclusive jurisdiction of the State Department of Corrections.
The function of the Department of Corrections under the Code Section, supra, is merely to enforce sentences which are lawfully imposed, and the question whether a Court is acting within its authority and jurisdiction in modifying a sentence, is to be determined by the statutory law governing such authority or by the adjudications of our appellate courts. It is evident that the language "The court again reserves the right to modify this judgment at any time before this sentence is completed" is purely surplus and of no legal effect. See the case of Horkan v. Beasley, 11 Ga. App. 273. Headnote 2 of this case states:
" 'It shall be the duty of the judges of the superior and city courts to adjourn the regular and adjourned terms of said courts at least five days before the commencement of the next regular term of said courts', is directory to the judges, and was not intended to take away from the presiding judge the inherent authority to control the continuance of a term of the court to meet the exigencies of the public business".
In the case of Stockton v. The State, 70 Ga. App. 17, Judge Gardner, speaking for the Court, stated:
"In a criminal case, the trial court or the judge thereof is without authority, after the expiration of the term to which a sentence is imposed, to modify or change a sentence which is complete".
The question here is: Is a sentence complete when a judge puts upon the face of the sentence the language quoted here? If the sentence is not complete, how can the Pardons 'and Parole Board of Georgia determine when a person would be eligible to have his case considered for parole? If the sentence is not complete, at what time would the Department of Corrections begin computing his sentence? If the sentence is complete, and the term has EXpired and the person sentenced has begun the serving of the sentence, then the Court loses jurisdiction after the term to change or modify the term of the sentence and such language quoted herein is purely surplus and of no le:gal effect and an order signed by the Court releasing a person is not such an order as would have to be complied with by the State Department of Corrections or its agents. See the case of Wallace v. The State, 126 Ga. 749, headnote 3, wherein Judge Evans, speaking for the Court states:
"The sentence imposed upon a prisoner should express the full punishment which the trial judge may, in a wise exercise of the discretion vested in him, deem merited by the prisoner because of the offense committed by him, without regard to what his future conduct may be and independently of any contingency which may arise after sentence has been pronounced and the court has lost the power to impose punishment on him".
When a Court reserves the right to change or modify a sentence after the term at which it was imposed and after the prisoner has begun the execution of the sentence, the very fact of the Court's retaining the power to change or

115
modify the terms of the sentence is imposing within the terms of the sentence a further contingt::ncy. To retain the power after term time and after the prisoner has entered upon the execution of his sentence to shorten the period of the sentence is likewise to retain the power to impose still further an additional period of service upon the prisoner. Such cannot be legally done in Georgia.
A judgment of a Court, whether criminal or civil, cannot at a subsequent term be amended in a material respect, even though the amendment makes it conform to the original judgmt::nt rendered at a prio:r date. If the Court seeks to modify or change the judgment after the term at which it was rendered in a manner which was not material and in a manner which does not affect the substantial rights of the parties, this has to be done in a proper proceeding brought for that purpose with due notice to the parties whose rights are to be affected. See the case of Crowell v. Crowell, 191 Ga. 37.
Surely an attempt on the part of a court to reserve the right to modify or change a sentence after the term at which it was rendered affects the substantial rights of the State of Georgia, an interested party in a criminal proceeding. Are we to say that citizens in their civil matters have substantial rights which a Court cannot change, but that the State of Georgia, representing the total citizenry, has no rights when a Court is dealing with the modification or change of a sentence imposed by that Court at a prior term upon one who has offended thE: laws of this State? I do not believe this to be the rule of the law and regardless of the good intent of the trial court using the language, "The Court again reserves the right to modify this judgment at any time before the sentence is complete", and regardless of the meritorious case of the person sentenced, I am constrained to the opinion that the language quoted above is surplus and of no legal effect, and that. after the prisoner was sentenced and began the execution of his sentence, the trial courts in spite of the language used lost the right to change or modify the sentence aftt::r the term at which it was imposed expired.
CRIMINAL PROCEDURE-Sentences (1) Where a defendant is found guilty of more than one offense, the punishment will be executed concurrently unless the sentences recite that they are to run consecutively. (2) Sentences imposE:d to be served consecutively may not, after affirmance on appeal beyond the expiration of the term, be amended so as to run concurrently.
August 30, 1946 Hon. C. A. Williams, Director State Board of Corrections
I am pleased to acknowledge receipt of your letter dated August 27, 1946, in which you request an opinion as to the proper computation of the sentences in the case of the named defendant.
Your letter presents the following facts for consideration. The defendant was convicted in April, 1945, on five counts and sentenced to serve one to two years on each count. Sentences to be served consecutively. The cases

116
were appeale:d and affirmed by the Appellate Court and upon return to the trial court in April, 1946, the presiding judge in the trial court, in making the judgment of the Appellate Court the judgment of the trial court, amended or modified each sentence to run concurrently with the other sentences.
This statement of facts requires consideration of the powers of the trial court as to determining whether sentences are to be served "concurrently" or "consecutively" and the power to amend or modify a sentence.
The question involves the interpretation of Sections 27-2505 and 27-2510 of the Code of 1933. These Sections are as follows:
"It shall be the duty of the several judges, in the imposition of sentence for violation of the penal laws, to specify that the term of service under such sentence shall be computed as from the date of sentencE:, provided the defendant is confined in jail or otherwise incarcerated, and has no appeal or motion for new trial pending, except in such cases as may be appealed to the State Court of Appeals or the Supreme Court for reversal of the conviction, in which evE:nt the sentence shall be computed from the date the remittitur of the appellate court is made the judgment of the court in which the conviction is had, provided the defendant is not at liberty under bond but is incarcerated or in custody of the sheriff of the county where convicted."
"27-2510. Where a person shall be prosecuted and convicted on more than one indictment, and the sentences are imprisonment in the penitentiary, such sentence:s shall be severally executed, the one after the expiration of the other; and the judge shall specify in each the time when the imprisonment shall commence and the length of its duration."
As written in the Opinions of the Attorney General, dated April 3, 1944, by the Honorable T. Grady Head to Mr. F. R. Hammack, Director, State Department of Corrections, the general rulE: to be gathered from the Sections of the Code is that the courts still have power to require sentences to run consecutively, but sentences imposed in the same court must definitely recite they, one or the other, are to run and be served consecutively; otherwise without the SE:ntence or sentences so reciting, or if the sentences be altogether silent on the question, then the sentences must be considered to operate concurrently in respect to the period of service. In the case of Fortson v. Elbert, 117 Ga. 149, it was held:
"As to felonies, by the Penal Code, Section 1041, and as to misdemeanors, under general principles of criminal law, if a defendant is found guilty of more than one offense, and the imprisonment under one sentence is to commence on the expiration of the other, the sentence must so state; else the two punishments will be executed concurrently, and the defendant be entitled to his discharge on the expiration of the longer term."
The above is mentioned for the purpose of showing that the sentences in this case, prior to their modification must have recited that they were to be executed in consecutive order or othtrwise said sentences would run concurrently. It is apparent by the action of the judgE: of the trial court in modifying the sentences that such sentences did recite that they were to be executed in consecutive order.
This brings us to the question of modification of the sentences in this case after affirmance of the judgment of the trial court by the Court of Appeals.

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There is a WE:ll established rule that the judge of the trial court may at any time before the end of the term in which the sentence is imposed, amend or modify the sentence. However, the modification of the sentences in the instant case was made one year after rendition of the sentences by the trial court. This establishes the question as to whether the modification occurred during or after the term in which the sentences were imposed. This question is answered by Section 24-3010, Code of 1933, which is as follows:
"It shall be the duty of the judges of the superior and city courts to adjourn the regular and adjourned terms of said court~?, at least five days before the commencE:ment of the next regular terms of said courts: Provided, that this section shall not apply to any city court now or hereafter organized under a special Act of the legislature, and having as many as six terms per year, nor to the superior court in any county wherein such superior court has as many as six terms per year."
From the above it appears that the modification of the sentences occurred after the close of the term of court at which the sentences were imposed. This establishes the question as to whE:ther or not the presiding judge of the trial court in making the judgment of the Appellate Court the judgment of the trial court had the authority to amend or modify a sentencE: which has been affirmed by the Appellate Court.
The leading case in this question appears to be the case of Porter v. Garmony, 148 Ga. 261, in which it is stated that:
"1. Where one accused of a misdemE:anor was convicted, and at the term at which the trial took place was sentenced to serve a term in the chaingang, and the accused carried the case by writ of error to the Court of Appeals, where the judgment of the lower court was affirmed, the trial court was without authority at a subsequent term, upon making the judgment of the appellate court the judgment of the trial court, to modify and change the SE:ntence formerly imposed; and where he did pass an order modifying and changing the sentence, such order was void, as the court was without jurisdiction to alter the sentence originally imposed."
The ruling in Porter v. Garmony was followed in headnote (1) of the case of Shaw v. Benton, 148 Ga. 589. See also the case of Sto~kton v. The State, 70 Ga. App. 17.
In the case of United States v. Howe, 23 A. L. R. 535, it is stated:
"Another restriction upon the power to alter or amend a judgment is that such powu does not exist after the judgment has been affirmed by the appellate court. In the Federal courts, after an appellate court has decided a case brought before it on writ of error, it sends its decision down to the court below, whose proceedings have been reviewed, by means of a mandate which directs that court to enforce or reverse and set aside the judgment as the case may be; and the jurisdiction of the court below, which was lost by the suing out of the writ of uror, is reacquired when such a mandate is filed with it. Now we understand it to be well-established law that a judgment which the appellate court has affirmed, and by its mandate directed the court below to enforce, cannot thereafter be altered in any way by the lower court, and that irrespective of whether the term was extended or not. In Encyclopaedia of Pleading & Practice, Vol. 13, p. 850, it is correctly laid down that

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'the judgment of the appellate court cannot be modified or vacated by the lower court on the remand to it of the case, nor can the lower court alter or modify the judgment originally E:ntered by it."
From the above I am constrained to the opinion that the court, in its order making the judgment of the Appellate Court the judgment of the trial court, was without authority to amend in any material way the sentences rendered by it in this case. Therefore, I am of the opinion that the sentences in this case are to be served consE:cutively and not concurrently.
I trust that the citations of authority and the statements of opinions herein are sufficient to answer your questions and will assist you in arriving at what policy you should pursue in the premises.
CRIMINAL PROCEDURE-Sentences A prisoner may be required to commence serving a State sentence upon his release from a federal penitentiary bE:fore the expiration of his federal sentence without allowance for good time.
May 29, 1947 Hon. J. B. Hatchett Assistant Director State Board of Corrections
You state in your letter of May 21st that the named defendant was sentenced in Georgia and while serving his penitentiary sentence escaped; subsequently, he was convicted of crimEs against the United States and was sentenced to the United States Penitentiary in Atlanta; that he was conditionally released, having completed his sentence with good time allowance on May 14, 1947; and that you have taken him into custody and stnt him to the Georgia State Prison.
The question, as I understand it, is whether his state sentence can commence bEifore the expiration of his federal sentence without good time allowance.
In the case of Grant v. Guernsey, 63 F. 2d 163, a convictee by a federal court was put on probation for the term of his sentence and thereafter was brought to trial for a state offense committed prior to his sentence in the federal court. The court held that the convictee was under the jurisdiction of the federal court subject to its orders under the probation statute at any time, and thereby released him on habeas corpus. There was a strong dissenting opinion which stated that such a ruling had the effect that anyone on probation for an offense in federal court had a complete grant of immunity from all other prosecutions.
The U. S. Code Annotated, Title 18, Section 716B is as follows: "716b. Same; prisoners released with credit for good conduct treated as on parole until expiration of maximum term. Any prisoner who shall have served the term or terms for which he shall after June 29, 1932 be sentenced, less deductions allowed therefrom for good conduct, shall upon release bE: treated as if released on parole and shall be subject to all provisions of law relating to the parole of United States prisoners until the expiration of the maximum term or terms specified in his sentence: Provided, That this section

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shall not operate to prHent delivery of a prisoner to the authorities of any State otherwise entitled to his custody."
In the case of State v. McKee, 190 So. 325, the Louisiana Supreme Court held as follows:
"Where defendant had previously been sentenced in federal court on March 12, 1936, on narcotic charge and had thereafter been conditionally released on October 18, 1937, and discharged from federal custody on March 11, 1938, pursuant to statute authorizing deduction from term of sentence for good behavior, state court was not without jurisdiction of defendant in murder prosecution on ground that he was still a ward of federal government, when placed on trial on March 11, 1938."
Therefore, in view of the above it is my opinion that the State sentence can commence immediately upon the release from the United States Penitentiary.
CRIMINAL PROCEDURE-Sentences An order taken in term to hear a motion for a new trial in vacation keeps the term relative to the particular case open, and the court may amend the; sentence until the motion shall have been acted on.
August 13, 1947 Hon. Charles A. Williams Director of Corrections
Reference is made to your inquiry of July 31, in which you requested an official opinion as to whether or not the trial court has authority to amend a sentence after the term at which the same was imposed had expired while a motion for new trial was pending.
The case of Shaw v. Benton, 148 Ga. 589, states that the trial judge, after adjournment of the term at which a sentence was imposed by him, had no authority to change or modify the original sentence. The facts of that case state that the defendant was convicted and sentenced on November 15, 1917; that he moved for a new trial which was denied on December 22, 1917, and that the Court of Appeals affirmed the judgment of denial; that before the remittitur from that court was forwarded, the trial judge on April 5, 1918 and after adjournment of the term at which the trial was had, amended the; original sentence; that on April 15, 1918 the remittitur was made the judgment of the trial court and the trial judge at the same time again amended the sentence by rescinding the order of April 5. The Supreme Court held that the second amendment was void, thereby implying that the first amendment of April 5 was done with legal authority.
There are numerous decisions in Georgia to the effect that the trial court is without power to change the sentence after the defendant has been committed thereunder by increasing the punishment, even during the same term at which the original sentence was passed; but in the case of Gobles v. Hayes, 194 Ga. 297, it was held that the trial court could amend a sentence during the same term of court at which it was imposed by reducing the severity of the sentence.
In Auldridge v. Womble, 157 Ga. 64, the court stated the rule now in

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effect in this State to be that aftE:r the adjournment of the term of court at which a sentence is imposed, the judge is without authority to change and modify it.
In Porter v. Garmony, 148 Ga. 261, it was said: "Where one accused of a misdemeanor was convicted, and at the term at which the trial took place was sentenced to serve a term in the chain-gang, and the accused carried the case by writ of error to the Court of Appeals, where the judgment of the lower court was affirmed, thE: trial court was without authority at a subsequent term, upon making the judgment of the Appellate Court the judgment of the trial court, to modify and change the sentence formerly imposed; and where he did pass an order modifying and changing the sentence, such order was void, as thE: court was without jurisdiction to alter the sentence originally imposed." In the case of Herz v. Frank & Adler, 104 Ga. 638, the court stated that an order passed in term, setting the hearing of a new trial in vacation, in effect keeps the term relative to that particular casE: open under such motion, until such motion shall have been denied. In the case of Stone v. Taylor, 63 Ga. 309, Justice Bleckley stated that: "The order taken in term to hear the motion in vacation put the judge in full possession of the case at the time appointed, and continuances from time to time were had, so that there was no gap or break, it was as if the first day had been lengthened, or all the sittings had taken place at different hours of the same day. . . . He had exactly the same power in that respE:ct as if he had been sitting in term; and so had he in respect to adjourning over from one day to another." It is, therefore, my opinion that the answer to the question presented is that if the defendant had not begun serving the sentence imposE:d, and while he had a motion for a new trial pending, that the trial judge could amend the original sentence even though the amendment to the sE:ntence was imposed at a subsequent term from that of the imposition of the original sentence.
DEEDS-Recording DeE:ds, mortgages and liens take effect against third parties acting in good faith and without notice only from the time they are filed for record, except that a conditional contract of sale of personal property recorded within 30 days of delivuy protects from the date of delivery.
January 28, 1946 Hon. J. C. Beasley Superintendent of Banks
You referred a letter written by Mr. W. Clyde Roberts, Supervising Examiner, to this office for an opinion as to the time that a mortgage, or lien, shall be recorded in order t~ protect banks holding same against third parties who deal with the maker.
Section 29-401 of the Code of 1933 provides that every deed conveying land shall bE: recorded in the office of the clerk of the Superior Court of the county where the land lies. The record may be made at any time, but an

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unrecorded deed loses its priority over a subsequent recorded deed from the same vendor, where taken without notice of the existing first deed.
Section 67-1305 of the Code of 1933 provides in substance that every deed to secure debt shall be recorded in th~:: county where the land conveyed lies. Every bill of sale to secure debt, shall be recorded in the county where the maker resides at the time of its execution, if the maker is a resident of the State, and every nonresident in the county where the personal property is located. Deeds or bills of sale not recorded remain valid against the person ~::xecuting them. The effect of failure to record such deeds and bills of sale shall be the same as is the effect of failure to record a 'deed of bargain and sale, as prescribed by Section 29-401 of the Code which I have just discussed above.
Conditional bills of sale, or contracts of sale of personal property which carry the condition that the title to the property conveyed is to remain in the vendor until the purchase price is paid are required to be recorded under the same conditions r~::lating to the registration of mortgages on personal property, except that they must be recorded within thirty days from their date. See Section 67-1403 of the Code of 1933.
Section 67-2501 of the Code of 1933 provides as follows: "Deeds, mortgages, and liens of all kinds, which are required by law to be recorded in the office of the clerk of the superior court, shall, as against the interests of third parties acting in good faith and without notic~::, who may have acquired a transfer of lien binding the same property, take effect only from the time they are filed for record in the clerk's office. The said clerk shall keep a docket for such filing, showing the day and hour thereof, which docket shall be open for examination and insp~::ction as other records of his office." From the above cited provisions of the Code it will be seen that mortgages and other liens created by contract, with the exception of conditional sales contracts, must be recorded so as to protect the holder against the interest of third parties acting in good faith and without notice, where such third parties acquire a transfer or lien binding the same property from the maker of the first contract. The liens btcome effective only from the time they are filed in the clerk's office for record. A lien under a conditional contract of sale recorded within thirty days of delivery protects from date of delivery. See Alexander v. Patterson, 13 Ga. App. 591.
DIVORCE AND ALIMONY-Divorce (Unofficial) The Act of 1864, making it grounds for divorce in favor of a female that her husband is in the military service of the United States, has expired.
November 20, 1945 Mr. Wayne Harbour Harbour & Son Bedford, Iowa
Your l~::tter of November 7, in which you request information concerning a law passed in 1864, dealing with absolute grounds for divorce, is acknowledged.

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I have had one of my assistants investigate the matter brought to our attention in your letter, and we have found that at an Extra Session of the Legislature of 1864, called together during the War Between the States, the General Assembly of Georgia did enact
"That from and after the passage of this Act, the following shall be good grounds for a total divorce in favor of any loyal female, a resident of the State of Georgia: 1st. That her husband is in the military service of the United States; 2d. That her husband has been, or is voluntarily within the lines of the enemy, furnishing them aid and comfort." This Act was passed on March 18, 1864.
You will note that the intent of the Legislature was to grant relief to the wives of disloyal Georgians who either had joined the United States Army as distinguished from the Confederate Army, or who had gone into the enemy lines for the purpose of giving aid and comfort to the enemy.
It is evident that the purpose for which this Act was passed has long since ceased to exist, and it is my unofficial opinion that should a divorce proceeding be brought in this State by a female who is a resident of this State, upon the grounds that her husband was a member of the United States Army, that the Court would determine' that the intent of the Legislature was that this law was to be of a temporary nature, and that on and after the date when Georgia again became one of the United States of America, such law became contrary to public policy, and that the grounds for absolute divorce described in the above stated code section are no longer sufficient in law.
DIVORCE AND ALIMONY-Divorce (Unofficial) A valid marriage may not be contracted within 30 days of the granting of a divorce decree.
November 3, 1947 Major Robert J. Emmons Chief, Legal Branch Office of the Chief of Finance St. Louis 20, Missouri
This will acknowledge your letter inquiring as to the validity of a marriage contracted within or without the State of Georgia within thirty days of the rendition of a divorce decree.
So far as we can ascertain, there has been no adjudication on this question since the passage of the 1946 Divorce Act. However, it would seem that a marriage contracted in Georgia during the thirty day period would be voidable, although if continued beyond that time, in a bona fide state of marriage, the Courts might hold that a valid common law marriage exists between the parties.
The divorce decree, under the new Act, does not become effective on the' day it is rendered, but only becomes final thirty days thereafter. During the thirty day period, objections to the decree may be filed and tried. If no objections are filed, the decree becomes of full force and effect as a final decree of divorce thirty days after its rendition.
A marriage contracted in Georgia within the thirty day period, might be

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held to be analogous to cases where the parties were under the l~:gal age for marriage, but the marriage continuing after legal age was attained, were held to be valid; or to cases where an undivorced person contracted a cer~:monial marriage with a woman who was ignorant of the first marriage, and where it has been held that after the death of the first wife, the second relationship continuing, a lawful marriage existed. See Hamilton v. Bell, 161 Ga. 739; Drawdy v. Hesters, 130 Ga. 161.
The general rule in Georgia is that a second marriage is presumed to be valid, and the burden is upon the person attacking such marriage to show its invalidity; that while a relationship illicit in its inceptioii would be presumed to continue so, slight change in circumstances (such as the attaining of legal age, or the death of th~: first wife, with the second marriage continuing in a bona fide relationship) "will be seized hold of in order to presume the marriage." (Hamilton case, above, p. 741). In the latter case, the burden of proof is upon the person asserting the validity of the second marriage.
I think any marriage contracted by a person in Georgia during the thirty day period before the divorce decree becomes final, would undoubtedly be invalid; whether continuance of th~: relationship after that period would render it valid would depend largely upon the circumstances, but where a bona fide relationship existed, and considering the predilection of Georgia courts for holding a marriage valid wherever possible, I think it likely the marriage would be held lawful after expiration of the thirty day period.
As to marriages contracted within another State within the thirty day period, such State, under the full faith and credit clause of the federal Constitution, would probably recognize the Georgia decree and hold the marriage invalid, unless some policy or law of the State where the marriage was contracted rendered it valid, either when contracted or after expiration of the thirty day period.
I have not chanced to see one of the printed forms which you state are used in. Georgia stating that the plaintiff or defendant is not permitted to marry again for a period of thirty days from the date of the decree; but, as set out above, the decree lacks its full force and effect for the thirty-day period, and possibly this form is used in some Courts merely to make certain the eff~:ct of the waiting period is understood. Whether or not marriage is forbidden in the decree within the thirty-day period, I am of the opinion that no valid marriage could be contracted until the decree becomes final, unless it became valid thereafter as set out above.
EDUCATION-Compulsory School Attendance Work certificates should not be issued to any child within the school ages unless such child is exempted or excused from attending school under the Compulsory School Attendance Act.
September 13, 1945 Dr. M. D. Collins State Superintendent of Schools
Your letter of September 5 received. You request that I advise regarding the issuance of work certificates to children of school age.

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Act No. 350, approved March 8, 1945, requires the parents or guardians of all children bttween their seventh and sixteenth birthdays to enroll them in public or private schools. Section 2 provides that children who have completed all high school grades are not within the provisions of the Act. Section 3 of the Act exempts from the provisions of the Act:
"(a) Children mentally or physically incapacitated to perform school duties.
"(b) Children excused from attendance in school by county and/or independent school system boards of education, in accordance with the general policies and regulations promulgated by the State Board of Education. The State Board of Education, in promulgating its general policits and regulations, shall take into consideration sickness, seasonable labor and other emergencies which may arise in any school community."
Chapter 54-3 of the Code of 1933 enumerates several occupations that children between the ages of fourteen and eighteen are not permitted to engage in, unless they hold a certificate from the county school superintendents, certifying to a certain qualification.
The question propounded in your letter is an administrative question, to be determined in each individual case. School children past fourteen years of age, who are exempted by Sections 2 and 3 of Act No. 350, and who are qualified to perform labor, should not, in my opinion, be deprived of the right to work and earn money. I do not think that a certificate should be issued to any child within the school ages, unless such child is excused or txempted from the requirement of attending school.
EDUCATION-Compulsory School A~tendance (Unofficial) A married woman, although under 16 years of age, may not be required to attend school.
December 19, 1946 Miss Jarvis Barnes, Director Statistics and Pupil Accounting Board of Education, City Hall Atlanta, Georgia
Your letter of December 9th received. You rtfer to Sections 1 and 10 of the Compulsory School Attendance Law and propound some five or six questions relating to the same. The questions all deal with the attendance of a married girl under sixteen years of age.
Section 1 of the Act provides that every parent, guardian, or other person rtsiding within the State of Georgia, having control or charge of any child or children between their seventh and sixteenth birthdays shall enroll and send such child or children to a public or private school. Section 10 provides a penalty against such parent, guardian, or other person, who fails to enroll a child or children under their control who are between the ages of seven and sixteen.
Under Section 53-102 of the Code a female of 14 years of age or above may enter into a legal contract of marriage. Under Section 53-501 of the Code when a legal marriage is consummated the husband becomes the head of

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the family and the wif~ is subject to him. Her legal civil existence is merged in the husband, except so far as the law recognizes the wife separately, either for her protection, her benefit, or for the preservation of public order.
Under Section 53-510 of the Code the husband is bound to support and maintain his wife, and his consent shall be presumed to her agency in all purchases of nccessari~s suitable to her condition and habits of life, made for the use of herself and family. I do not find any law' which makes the husband liable for the education of his wife. I think that the necessities referred to by the Code Section includes only such necessities which may be included in the actual support and maintenance of the wife and family.
Under Section 74-104 of the Code the age of legal majority in this State is 21 y~ars; until that age all persons are minors. Under Section 74-105 it is the duty of the father to provide for the maintenance, protecticm and education of his children. Under Section 74-108 it is provided that a child shall remain under control of the father, who is entitled to his services and the proceeds of his labor until the child reaches the age of majority. The parental power shall be lost by, among others, consent to the marriage of the child, who thus assumes inconsistent responsibility.
In the case of Payne Hardware Company v. Lenox, 34 Ga. App. 131, the court held that it was illegal to set aside a year's support for a married minor child, even though the child was separated from her husband. The court held that there was no legal duty on the father to support his married child or daughter.
The Supreme Court in the case of Thompson v. Georgia Railroad and Power Company, 163 Ga. 598, likewise recognized that marriage of minor childr~n created a changed condition, and changed responsibility of relation of parent and child.
I am, therefore, of the unofficial opinion that when a girl under sixteen years of age enters into a marriage contract after reaching fourteen years of age, she comes from under the control of her parent, guardian, or other person, and assumes an inconsistent relation to her parent, guardian or other person and there are inconsistent responsibilities. I, therefore, do not believe that the parent, guardian, or other pE:rson, of such a child could be convicted under Section 10 of the Compulsory School Attendance Law. Since there is no legal duty, so far as we can find, upon the husband to educate the wife, I am of the further opinion that the husband of such a child could not be held criminally liable under Section 10 of the Compulsory School Attendance Law.
Section 2-6601 of the Code, being a constitutional provision, provides that there shall be a thorough systE:m of common schools for the education of children, and that such schools shall be free to all children of the State, with separate schools provided for the white and colored races. The age as fixed by the Compulsory School Attendance Law refers to children between their seventh and sixteenth birthdays. It has been held in somE: jurisdictions that school boards could not adopt rules and regulations, which are arbitrary and unreasonable, so as to prevent married persons from obtaining the benefits of a common school education as provided for under similar constitutional provisions. See McLeod v. Wiles, 122 So. 737, 63 A. L. R. 1116.
However, I do not find any statute which is directed against the child,

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or to require the child's attendance in school. You will note that the Compulsory School Act is directed against the parent, guardian, or other person having charge of minor child or children. I am, therefore, of the unofficial opinion, that there is no way of compelling a married girl to attend school even though she has not rE:ached the age of 16.
EDUCATION-Consolidation of S:hools A county board of education could not consolidate local school districts for the purpose of making the non-bonded district liable for bonds of the bonded district unless there had been separate elections in each district.
November 15, 1945
Dr. M. D. Collins State Superintendent of Schools
Your letter of November 3rd, E:nclosing a letter from Hon. J. D. Pritchard, County School Superintendent of Appling County, received. Mr. Pritchard wishes to be advised whether the county fiscal authorities can levy a tax to retire a bonded indebtedness of Bethel School District on property that composed Grant School District at the time the Bethel IndebtednE:ss was incurred.
Mr. Pritchard does not state in his letter how the two school districts were consolidated but he does intimate that the consolidation was made by an order of the Board of Education of Appling County, and I infer from his letter that there \vas no election held in the two districts for the purpose of consolidation in the mann:1" provided for in the Constitutional Amendment of 1931. Unless there was held an election, separately in each district, as provided for in Section 2-6901 of the Code of 1933 (Constitutional Amendment 1931, Ga. L. 1931, pp. 103-105), the rule as adopted by the Supreme Court in the cases of Barber, tax commissioner v. Cummings and Sons, 167 Ga. 289, Scarbough v. Houston, tax commissioner, 179 Ga. 194, and Register v. Culter, 171 Ga. 439, would apply and the property of the Grant School District would not be liable for taxes levied to retire the bonded indebtedness incurred by Bethel School District.
The Supreme Court in Page v. Sansom, 184 Ga. 623, in effect holds that where the elections are held separately in the two districts for the purpose of consolidation and for assuming the bondE:d indebtedness of one of the districts, the property of the added district would be subject to bear a part of the bonded indebtedness. The amendment to the Constitution ratified November 8, 1932, provided the procedure for consolidation so that all of the property of the two or more districts consolidated would be liable. In order for the collection of taxes on the property of Grant School District to retire bonds issuE:d by Bethel School District it would be necessary to have held separate elections in each of the districts as provided for in the Constitutional Amendment ratified November 8, 1932. The property of the Grant School District would not be liable to the tax to retire bonds of Bethel School District if the consolidation was effected by order of the county board of education without any election being held for that purpose. The county board of education had the right to consolidate the districts by order without an election, but not for the purpose of making the property added to a bonded district liable for bond tax.

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EDUCATION-Consolidation of Schools (Unofficial) Local school districts may not consolidate under the 1945 Constitution so as to make the consolidated district liable 'for the bonded indebtedness of any one of the districts consolidated.
January 22, 1946 Hon. J. E. French Gordon County Farm Bureau Ranger, Georgia
With further reply to your letter of January 16, wherein you asked that I answer seven questions all relating to the consolidation of bonded school districts, I desire to call your attention to the provisions of the Constitution of 1945.
You requtsted that I answer each question according to the number, but after considering the Constitution of 1945 I deem this unnecessary since all questions will be settled by the conclusion that I have reached as to the right of districts to consolidate and assume the indebtedness of each other.
Prior to the 1931 amendment to the Constitution which was ratified in 1932, the Supreme Court had repeatedly ruled that the mere consolidation of districts did not authorize the levy of a tax eithtr for maintenance or for bonds until the citizens of the district had voted to tax themselves and to issue bonds. See Perry v. Baggett, 164 Ga. 143. Towns v. Workmore Public School District, Hl6 Ga. 393. Barber v. Cummings, 167 Ga. 289 and Register v. Colter, 171 Ga. 439.
The 1931 amendment to the Constitution gave authority to two or more local school districts, any one or more of which may have incurred a bonded indebtedness, to consolidate upon the condition that the bonded indebtedness outstanding shall be assumed by the entire district as consolidattd; with the provision, however, that before such consolidation should become effective, the same should be approved by the vote of two-thirds of the qualified voters of each district affected, at separate elections held for that purpose on the recommendation of the respective boards of trustees of the different districts.
Where elections were held as prescribed by the amendment to the Constitution, the property of the consolidated district became liable for the bonded indebtedness of the district or districts. See Page v. Sansom, 184, Ga. 623.
This amendment became a part of Paragraph 1, Section 4 of Articlt 8 of the Constitution of 1877. When the Constitution of 1945 was adopted this provision which permitted a consolidated school district to assume the bonded indebtedness of the districts being consolidated was left out of the Constitution.
I am of the opinion that since the provision was stricken from the Constitution and is no longer a part thereof, districts can not consolidate so as to make the property of a consolidated district liable for the bonded indebtedness of any one of the district or districts consolidated. I, thertfore, deem it unnecessary to attempt to answer specifically any of the questions propounded in your letter.

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EDUCATION-County Board (1) A member of a county board of education who was selected prior to the adoption of the 1945 Constitution remains in office until the expiration of his term of office.* (2) The grand jury dtsignates the expiration of the term of office of each new member of the county board of education so that one term expires each year.
August 29, 1945 Dr. M. D. Collins State Superintendent of Schools
This acknowledges your letter of August 23rd, in which you refer to an opinion rendered by my honorable predecessor, T. Grady Head, relativt to county board of education members. On August 14th, you propounded to 'Judge Head the following questions:
"Will the Grand Jury have to select five membus; one for one year, one for two years, one for three years, one for four years, and one for five years? Or will the present members continue to serve until the terms for which they were selected expire?"
Judge Head answtred your letter by referring you to Article 12, Section 1, Paragraph 6 of the Constitution of 1945. In your letter of the 23rd, addressed to me, you propounded the following question:
"How will county board members finally be selected on the one, two, three, four and five year basis respectively unless we start 'from scratch'? In other words whtn a board member's time is up, should he be elected for one, two, three, four or five years, and what if two or three members' time is up at once?"
Prior to August 7, 1945, and the proclamation of the Governor on August 13, 1945, the Constitution of 1877, did not name members of the board of education as public constitutional officers. The office of members of the board of education existed as a statutory office by virtue of an Act of tht General Assembly (Ga. L. 1919, p. 320). Under the Act of 1919 (Code Sections 32-901 and 32-902) each and every county composed one school district, which was confided to the control and management of a county board of education, which board of education was selected by the Grand Jury from the citizens of the counties and constituted five. They were to be freeholders of the county. The term of thtir office was for a period of four years and until their successors were elected and qualified.
The statutory county board of education as provided for in the Act of 1919, commonly known as the School Act, was incorporated in the Constitution of 1945 adopted by the people on August 7 and proclaimed by the Governor on August 13, 1945. Paragraph 1, Section 5 of Article 8 establishes the county board of education as a constitutional office in the following language:
"Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and managtment of a county board of education. The Grand
*So held in Saxon et al. v. Bell, 201 Ga. 797, decided F'eb. 5, 1947, and Powell v. Price, 201 Ga. 833, decided Feb. 6, 1947.

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J"ury of each county shall select from the citizens of their respective counties five freeholders, who shall constitute the county board of education."
The Constitution of 1945 changed the statutory term from four to five years and provides that the first board selected after the adoption of the Constitution shall be elected with terms expiring so that one member shall be named as successor :Very year. The first question to be determined is whether or not the members of the board of education now in office under commission issued under the statutory office remain as members of the board of education for the term for which they were selected by the Grand Jury acting under their statutory authority. I construe Judge Head's lettei of August 16th to hold that the present members of county boards of education are to remain in office under tht':ir appointment under the statutory law until they have served the term for which they were elected. On August 9, Judge Head rendered an official opinion for Governor Arnall dealing with the terms of State officers and in his opinion makes the following statement.
"An officer or board already existing by statute which is for the first time incorporated in the Constitution by a provision not antagonistic to the existing statute in any material way continues to serve for the term appointed under the statute and, therefor:, in such a case, no new appointment is required or permitted merely because the office or board is included in the Constitution."
I agree with Judge Head in this statement and with his' conclusion reached in his letter of August 16th where he ruled that the present members of the statutory board of education remain in office until the expiration of the term for which they were selected. I concur in his opinion because of the provision containt':d in Paragraph 6, Section 1 of Article 12 of the new Constitution, which provides as follows:
"The officers of the Government now existing shall continue in the exercise of their several functions until their successors are duly elected or appointed and qualified. But nothing herein is to apply to any officer, whose office ,may be abolished by this Constitution."
I also agree for the further reason that the Constitution of 1945 did not abolish the statutory office, but the adoption of the Constitution providing for the same office and the same manner of appointment continued the office of members of the county board of education. I do not find any direct Georgia authority to support this conclusion. It was held in Fort v. Boyd Coun':y by the Supreme Court of Nebraska, 197 N. W., 953, that:
"Where a person is appointed to an office, pursuant to the provisions of a statute then in force authorizing such appointment, and during his incumbency of the office the statute is repealed, but like provisions for the appointment ar(: contained in the repealing act, no reappointment of such official is necessary, since the re-enactment of the old law into the new is, in effect, a continuation of the law under which he was appointed."
It was held by the Supreme Court of this State in Drake, et al. commissioners v. Hammond, 129 Ga. 466, that an amendment to an act creating a city court which changed the method of selecting a judge and solicitor did not have the effect of ousting the judge and solicitor appointed for a definite term under the original act. The Constitution of 1945 adopting the statutory

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office of me:mbers of the county board of education did not provide that the statutory office should be abolished, or that the term of office of the present members should be changed in any way. It does provide that in the future members of the board of education shall be for a term of five years with the exception and proviso that the first members elected under this Constitution shall be elected in such a manner so that the term of office of one of the five will ~::xpire each year.
Under the proviso stated above it is my opinion that the present members of the county board of education are entitled to hold their office for the term of their appointment as previously made by the Grand Jury under the statutory authority.
The other que:stion for consideration is the one contained in your letter of August 23rd, wherein you request that I advise how members may be selected so that the terms of office will expire one each year.
The Grand Jury of the county is the appointing power of officers to fill the membership of the county board of education. The Constitution doe:s not name any time for the beginning or expiration of any member to be appointed to succeed the present membership of the county board of education. There is no statute fixing the date for the commencement or ending of the term of any membe:r. The Grand Jury of the county, the appointing power under the statute and Constitution, is clothed with the power to fix the beginning and ending of the term of the first appointees made after the adoption of the Constitution and thereafter all subsequent terms are to conform with the beginning of the term of the first appointe:e. The courts of our State in a number of cases have declared that the appointing power is clothed with such power. See Talmadge, commissioner, et al. v. Cordell, vice versa, 167 Ga. 594 (4).
Under the authority cited above it is my opinion that the Grand Jury should take into consideration the existing te:rms of the present members of their county boards of education and at the end of the terms for which they are commissioned make their appointment so as to put into effect the provisions of the Constitution that the term of one member shall expire each year. No perfect formula can be given which will apply to each county in the State. If the first member appointed after the adoption of the Constitution and the appointme:nt is made during the present year to expire in 1950, the next appointment should be made to expire in 1951 and so on.
I trust that the above and foregoing will answer your questions relating to the appointment and terms of the members of the county boards of education and that you will be able to fully advise the school authorities on these matters.

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EDUCATION-County Board-School Bonds (1) Whether a school bond election may be held under the 1945 Constitution without an enabling act, quaere?* (2) A county board of education may consist of only five members regardless of the number of militia districts in the county. (3) A member of the county board of education may also serve as trustee of a local school district.
September 13, 1945
Dr. l\1. D. Collins State Superintendent of Schools
Your letter of September 5th received. You request my opinion on four questions dealing with school matters. Questions 1, 4 and 5 were answerE;d in my opinion dated August 30th dealing with the local school trustees. Queostions 2 and 3 deal with the question of future bond issues for schools and are stated as fol)ows:
"2. How many favorable votes should a school bond issue receive under the new Constitution? That is; if 51 '7o of the registered qualified voters should participate in a school bond election and if 34 '7o of the 50 '7o should vote favorably, would the bond issue be carried?
"3. Whether or not it is required to circulate a petition to call a school bond election."
Answers to question 2 and 3 involve the Constitution of 1945, together with enabling acts passed under the Constitution of 1877. The issues presented in the questions have not been determined by our courts since the adoption of the new Constitution, and they involve matters that do not involve the official duties of State officials and consequently I am not authorized to render an official opinion that would be binding upon any local political division of the State which might desire to enter into a bonded indebtedness. Section 40-1602 of the Code of 1933 outlines the duties of the Attorney General. Under this Section of the Code when required so to do by the Governor, it is the duty of the Attorney General (1) To give his opinion in writing, or otherwise on any question of law connected with the interest of the State or with the duties of any one of the Departments.
This Section outlines five other duties of the Attorney General, none of which authorizes the Attorney General to officially determine questions where the local political divisions of the State are involved, unless it also involves the giving of advice concerning the duties of one of the Departments of the State.
Under the Act of 1919 and the Constitution of 1945, the county constitutes one school district which is a political division of the State. It is, however, the unit or division through which counties act for the purpose of carrying into effect the educational system of the State. Local school districts created under the Act of 1919 are also political divisions of the State and are units of the government which assist in carrying out the administrative powers of the county in school purposes. Counties and local school districts are recognized as political divisions of the State which are authorized under the Constitution to create bonded indeobtedness. See Ty Ty Consolidated School
s~e Sec. 23, Act of 1946, pp, 206, 216.

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District v. Colquitt Lumber Company, 153 Ga. 426. Jennings v. New Brownwood School District, 156 Ga. 15. Campbell v. Red, Bud Consolidated S::hool District, 186 Ga. 541.
The Constitution of 1877 (Sections 2-5501, Code of 1933) provided in substance that debts created by any county, municipal corporation or political division of this State shall never exceed seven per centum of the assessed value of the taxable property, and that no such political division should evE:r incur any new debt except for a temporary loan in excE:ss of one-fifth of one per centum of the assessed value of the assessed property:
" *' * * without the assent of two thirds of the qualified voters thereof,
voting in an election for that purpose to be hE:ld as prescribed by law: Provided,
said two thirds so voting shall be a majority of the registered voters, * * *"
Paragraph 1, Section 7, Article 7 of the Constitution of 1945, provided that no such debt shall be created by any county, municipal corporation or political division of this State:
"* *' * without the assent of a majority of the qualified voters of the
county, municipality or other political subdivision voting in an election for
that purpose to be held as prescribed by law; * * *."
The language dealing with the number of voters necessary to carry a bond issue as contained in the new Constitution is not altogether clear. It is debatable whether the General Assembly who proposed the Constitution, and the voters who adopted it, intended that a majority of the voters of the political division should vote in favor of bonds or whether a majority of the qualified voters voting is sufficient to authorize the creation of the debt. Since the courts have not passed upon this provision, and have given us no rulE: to follow, and since the determination of what the terms of the Constitution mean does not involve any official duty of the Department of Education, I deem it improper for me to express any opinion as to the construction that should be placed thereon. The question is one to be considered and determined by the county attorney or other attorney employed by any political subdivision of the State for the purpose of securing a bonded issue.
As a matter of information I desire to call your attention to the fact that the Supreme Court in Hudson v. The Mayor, etc., of Marietta, 64 Ga. 287, ruled that a city has no authority to incur a dE:bt until there has been an election held according to a law prescribing the manner thereof by an act of the General Assembly. The court ruled that a mere vote on the question of the creation of such an indebtedness, where the election was held without any enabling act being passed by the General Assembly could not be held to be such an authorization of a debt as will comply with thE: Constitution. The Constitution of 1945 provides that the election for the purpose of creating a bonded indebtedness shall be held as prescribed by law. The indebtedness could not be created unless there is an act of the General Assembly providing for the method of handling the election to create the debt in conformity with the Constitution. See Elliott v. Gammon, 76 Ga. 766, and City of Dawson v. Water Works Company, 106 Ga. 696, together with the discussion by Justice Cobb under headnote 2, page 727.
Whenever any political division of the State desired to incur any bonded indebtedness as prescribed in the Constitution of 1877, it was necessary to follow

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the provisions of the Code set forth in Sections 87-201, 87-202 and 87-203. Section 87-203 reads as follows:
"When said notice shall have been given and said elE:ction held in accordance with the preceding section, if the requisite two-thirds of the qualified voters of the county, municipality, or political division voting at said election vote for bonds, and the two-thirds so voting are a majority of the registered voters thereof, then the authority to issue the bonds in accordance with Paragraph I and II, Section VII, Article VII of the Constitution (Sections 2-5501, 2-5502) is hE:reby given to the proper officers of said county, municipality, or political division."
It will be noted that this Section provides for a two thirds vote of the qualified voters of the county as being necessary to authorize the issuance of bonds and that the two thirds vote, voting in favor of bonds must constitute a majority of the registered voters. In this respect the enabling act is in conflict with the present Constitution. In elections held by local school districts for the purpose of issuing bonds the authorities of the district were required to follow the provisions of Chapter 87-201 of the Code. (SE:e Section 32-1401, Code of 1933). The only enabling act now in existence is one which requires a vote of two thirds of the qualified voters voting in favor of bonds with the two thirds qualified voters constituting a majority.
Section 32-1403 of the Code of 1933 authorizes counties to issue bonds for the purpose of building schoolhouses. This enabling act authorizing counties to vote county-wide bonds for schoolhouses providE:s:
"*" * * In the event that two-thirds of the votes cast at such election
shall be in favor of 'schoolhouse bonds,' and such two-thirds is also a majority of all of the voters qualified to vote in said election, then the bonds shall be issued and sold, under all of the regulations now provided by law for other
county bonds; " * *."
This provision of the enabling act authorizing counties to crE:ate bonded indebtedness is in conflict with the Constitution of 1945 in that the number of favorable voters necessary to create the debt has been changed.
Construing the provisions of the present enabling acts with the Constitution of 1945 under the rule adopted by the SuprE:me Court in Hudson v. The Mayor, etc., of Marietta, supra, it is, to my mind, questionable whether any bonds can be issued by any of the political divisions of the State until the General AssE:mbly has passed proper enabling acts, or amended the present existing acts.
Paragraph 3, Section 1, Article 12 provides in substance that laws now of force, not inconsistent with the Constitution, shall remain of force. Laws inconsistent with the Constitution, are no longer of force.
If it should be determined that a county has the right, under the present enabling act, to issue bonds to build schoolhousE:s, the county, as a political division of the State would have the right to call an election where onefourth of the registered voters file a petition with the county board of education asking for an election for the purpose of determining whether or not bonds should be issued. See Section 32-1403 of the Code of 1933.
I have callE:d your attention to the enabling acts and the provisions of the Constitution of 1945 so that any political subdivision, and its attorneys,

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could take into consideration the provisions of the statute together with the decisions of ou11 courts, and determine for themselves whether or not it is proper to proceed under the old law or to await a clarification by the General Assembly in January.
Question 6 in your letter reads as follows: "Under the nE:w Constitution does the law make it necessary to have one county board member from each militia district? Also, can a person serve as a school trustee and a member of the county board of education at the same time?" This question propounds two questions. You asked if it is necessary to have one county board member for each militia district. The Act of 1919 provided that the county board of education should consist of only five mEombers. The Constitution of 1945, which adopted the statutory office of members of the county board of education, also provides that the board shall consist of five members. It is a well known fact that the militia districts in the different counties vary in number. It is impossible under the Constitution to have a member in each militia district in each county of the State. The other portion of question 6 is can a person serve as a school trustE:e and as a mem her of the county board of education at the same time. Judge M. J. Yeomam answered this question for you in his opinion rendered October 21, 1935 while he was serving as Attorney General of the State. He stated: "I beg to advise that I am of the opinion that there is nothing in th~ laws prohibiting a member of a county board of education from serving as a district trustee, E:specially where there is no conflict in the duties of the tw<l offices." Opinions of the Attorney General, 1935-1936, p. 80. On January 9, 1940, Governor Arnall, while serving as Attorney General, quoted Judge Yeoman's opinion and concurred in same in an official opinion given Honorable A. A. Jameson of Wiley, Georgia. Opinions of the Attorney General 1939-41, p. 102. I concur in the opinions rendered by the former Attorneys GE:neral.
EDUCATION-County Board (Unofficial) A county board of education may borrow money, to be repaid from appropriations and taxes levied during the year in which the loan is made, for the purpose of purchasing equipment for the transportation of pupils.
January 29, 1946 Hon. George Smith Member, General Assembly Swainsboro, Georgia
Your request for information, touching thfi authority of the County Board of Education to borrow money from a local bank to be used for the purpose of school equipment, such as buses, trucks, etc., received.
Authority of County Board of Education to borrow money, and the procedure to be followed, is set forth in Sections 32-921 through 32-928 of the Code of 1933. Section 32-921 of the Supplement to the Code defines the power of a 8nmty Board of Education in the following language:

135
"The county boards of education of the several counties of this State shall havE: the power and authority whenever they deem it necessary to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their counties: Provided, that no board of education shall have authority under this law to borrow a sum of money greater in the aggregate than the sum which the county board of education may be entitled to receive from the State appropriation and from taxes levied for educational purposes during the year in which such loan is made."
You will note from Section 32-922 the law requires the Board to pass a resolution authorizing money to be borrowE:d to pay for the operation of public schools; the resolution shall state the amount to be borrowed, the length of time the same is to be used, the rate of interest to be paid, the purpose to which the money will be put and the name of person from whom same i~ borrowed. The resolution must be rE:ported on the minutes of the Board of Education.
Section 32-924 provides in substance that the Board shall borrow the money at as low a rate of interest as possible and that the Board is authorized to pay the interest on the money out of the public school funds.
Section 32-925 requires that the county superintendent of schools shall include in his report to the Grand Jury thE: amount of money borrowed, from whom borrowed, the rate of interest paid and the dates when the same was borrowed and when paid back, or when to be paid back.
The Board of Education has the right under Section 32-926 to execute a note or notes in the name of the Board of Education for money authorized to be borrowed under the resolution passE:d by the Board of Education. The note is signed by the President of the Board, together with the county school superintendent.
Section 32-927 provides how such money may be used, and is as follows: "\Vhen any money shall be borrowed under the provisions of this law, the same. shall be paid over to the county superintendent of schools and becomE: a part of the public school fund of said county, and the same shall be by the county superintendent of schools paid out to the teachers of said county. The county superintendent of schools shall be responsible for any money borrowed under the authority of this law and paid into his hands in the same way and to the same extent that he is responsible for any other public school funds coming into his hands." Under Section 32-928 it is unlawful for any Board of Education to make contracts involving the expenditure of funds in excess of the total appropriation for thE: current fiscal year, and any indebtedness incurred in violation thereof is declared to be void. You will note from the above quoted Section 32-921 that the County Board is authorized to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their county. Section 32-919 of the Code deals with the power of County Boards of Education to furnish transportation of pupils and teachers in the operation of schools, and is as follows:
"Whenever the county board of education or local district trustees deem it for the best interest of the school, they shall have the right to provide means for the transportation of thE: pupils and teachers to and from said school. No

136
school trustee, teacher or county superintendent of schools shall be financially interested in the transportation of pupils."
Under this section if the County Board of Education deems it for the best interest of the schools they have the right to provide means for the transportation of pupils and teachers to and from schools. Construing these sections together, I am of the opinion that the purchase of school busses for transporting pupils and teachtrs would be construed as a necessary expense in the operation of schools where the County Board deems it to the best interest of the school ~>ystem to transport such pupils and teachers.
The Supreme Court in Board of Education v. Board of Trustees of Fort Valley Consolidated S.~hool District, 170 Ga. 509 and Board of Education v. Thurmond, 168 Ga. 58, has ruled that a Board of Education is subject to the writ of mandamus to enforce the payment of a legal debt incurred by a county board of education for the purpose of operating the school of their county.
I wish to call your attention to the case of Lewis v. Board of Education, 183 Ga. 687, where, if I gather the effect of the ruling, it would be necessary for th~:: Board of Education to include in their budget the debt being created in order to protect the person loaning the money.
EDUCATION-County Board; School Buildings (Unofficial) (1) The county, acting upon the recommendation of the county board of education, is the tax levying authority for school maintenance tax.* (2) The county board of education may recommend the levy of a tax for building schoolhouses where no debt extending beyond the current year is created. (3) It is the duty of the county and not of the county board of education to pay the county attorn~::y for collecting unaccounted for school funds.
February 27, 1946 Hon. S. C. Harper County School Superintendent Jesup, Georgia
Your letter of February 19th received. You refer to the School Act approved February 1, 1946, and propounded four different questions, which will be stated and answered in the ord~::r set forth in your letter.
You refer to Section 1 of the Act which amends Section 32-909 by striking therefrom the words "either by labor on the part of the citizens of the subdistricts, or by a tax on their property" as they appear in lines 26 and 27 of said Section, and to the language inserted in li~::u thereof which is as follows:
"By a tax on all property located in the county and outside the territorial limits of any independent school district."
This Section as thus amended provides that the board of education may provide for school houses by a tax on all property located in a county and
See County Board of Education of Wilcox County v. Board of Commissioners of Roads and Revenues of Wilcox County, 201 Ga. 815, decided Feb. 5, 1947, holding recommendations of county board of education as to amounts of tax levies within constitutional limitations !or support of ed:;cRtien in counties are mandatory on county fiscal authorities.

137

outside the tHritorial limits of any independent school district. Your first question is: "Is a county board of education a tax levying authority?" The School Act of 1919 was very full and comprehensive in its scope. Section 32-901 of the Code, which is a part of the School Act of 1919, provides:
"Each and every county shall compose one school district, and shall be confined to the control and management of a county board of education."
That part of the School Act of 1919 was first incorporated into the Constitution of 1945 as proclaimed by the Governor on August 13, 1945, and was incorporated in the following language:

"Each county, E:xclusive of any independent school system now in existence in a county, shall comprise one school district and shall be confined to the control and management of a county board of education."
See Paragraph 1, Section 5, Article 8 of the Constitution of 1945. By a comparison of the language of the 1919 School Act and of the Constitution of 1945, it will be seen that they are very similar, and in my opinion should be construed in the same light. In Burke v. Wheeler County, 54 Ga. App. 81, 86, the court states:

"The county board of education is merely an agt:ncy through which the county acts in school matters. It is not an independent organization or a political division. It is not a body corporate with authority to sue and be sued, in the ordinary sense."

There are numerous decisions holding to the same effect. See, Board of Educa~ion of Houston County v. Hunt, 29 Ga. App. 665; Smith et al. Commissioners v. Board of Education of Washington County, 153 Ga. 758; Ayers v. Board of Education of Hare County, 56 Ga. App. 146; Ayers v. Hartford Accident and Indemnity Company, 106 F. 2d 958.
Paragraph 1, Section 5, Article 8 of the Constitution of 1945 provides in

part as follows: "Authority is granted to counties to establish and maintain public schools
within their limits." This provision of the Constitution of 1945 is not as full as a similar pro-
vision in the Constitution of 1877. Paragraph 1, Section 4, Article 8 of the Constitution of 1877 (Code Section 2-6901) provided in part as follows:

"Authority is granted to the counties and municipal corporations, upon

the recommendation of a corporate authority, to establish and maintain public

schools in their respective limits by local taxation. The proper county au-

thorities whose duty is to levy tax for county purposes in this State shall, on

recommendation of the board of education, assess and collect taxes for the

support of public schools. . . ."



Paragraph 1, Section 12, Article 8 of the Constitution of 1945 provides in part as follows:
"The fiscal authority of the several counties shall levy a tax for the support and maintenance of education not less than five mills nor greater than fifteen mills (as recommended by the county board of education) upon the dollar of all taxable property in the county located outside independent school systems."
Paragraph 1, Section 4, Article 7 of the Constitution of 1945 among other things, provides:

1~8
"The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except '(3) for educational purposes on property located outside of an independent school system, as provided in Article 8 of this Constitution,' and ' ( 4) to build and repair the public buildings and bridges.' "
I gather from these provisions of the Constitution that the county board of education is not a tax levying authority. The county board of education, under the Constitution of 1945 and under the Act of 1919, is the agency through which the county operates for school purposes. This agency of a county can only recommend the amount of tax necessary for school purposes, and after such recommendation it is incumbent upon the fiscal authorities of a county who levy county taxes to make the levy.
Your question No. 2 is as follows: "If the county board of education is not a tax lE:vying authority, could the tax levying authorities upon the recommendation of the county board of education levy and collect a tax for building school houses without the county first voting favorably for bonds to build school houses?"
Under Section 32-909 of the Code of 1933 as amended, the county boards of education have power to build and repair school houses. The county boards are invested with the title, carE: and custody of all school houses and other property belonging to the schools. The Section gives the county board authority to build school houses by a tax upon all property located in the county outside of independent school systems. School houses are in my opinion, public buildings. I am of the opinion that the county board of education could recommend the levy of a tax for the building of school houses where they do not create a debt which extends beyond thE: current year for which the tax is levied. Should the amount to be expended for erection of school buildings create a debt that could not be paid within the current year, it would be necessary to issue bonds as provided for in the Act of 1946. (See, Limitation on County Debts, Par. 1, Sec. 7 of the Constitution of 1945).
The Supreme Court in Hogan v. Sta~e of Georgia, 133 Ga. 875, ruled: "The Constitution of thE: State provides two ways for the construction of a public improvement and paying therefor; the one for cash and the other for credit. . . . A contract for the erection of the court house may be made without a previous vote, where the money necessary to pay therefor is either in the treasury or may be lawfully raised by the levy of a special tax for the current year. . .'' See also, Byrd v. Franklin, 151 Ga. 4 (1). In the case of Dyer v. Erwin, 160 Ga. 845, the Supreme Court said: "Without the preliminary sanction of a popular vote as required by the Constitution, county commissioners have no authority to contract to have a court house built on the credit of a county at a price in excess of the available funds on hand, together with such taxes as may be lawfully levied for that purpose during the year the contract is made.'' See also, Commissioners of Habersham County v. Porter Manufacturing Company, 103 Ga. 613.
In answer to question 2, I have pointE:d out the two methods by which a county could build a school house, and therefore I deem it unnecessary to

139
attempt any further answer to question 3, since question 3 requests that I advise if there was any other way for building school houses by the levy of a tax without a bond election.
You refer to that provision of' Section 32-1402 of the Code as substituted by the Act approved February 1, 1946. The provision requires a county board of education to cause to be made an audit of the bond accounts of a secretarytreasurer of a local school district and to call upon the county attorney to assist in collecting any unaccounted for funds. In connection therewith, you ask the following question:
"Is it the duty of the county attorney who is employed and paid by the Commissioners of Roads and Revenues of Wayne County to supply his services mentioned above without cost to the county board of education?"
I have pointed out that the tax levying authority for school taxes is the fiscal authority which levies county taxes for county purposes. In this connection, I refer you to Palmer v. Burke County, 180 Ga. 478, (3).
Under the ruling therein made, it is within the province of the county authorities to collect for any school funds that are being lawfully retained by any officer, and the disposition of the recovery is a matter between the county and the educational authorities, the presumption being that the amount recovered will be applied according to law.
The Court of Appeals in Burke v. Wheeler County, 54 Ga. App. 81 (4), ruled as follows:
"Public-school funds can not be used for other than school purposes. The contract was illegal in so far as it undertook to obligate the board of education to pay one half of the accountant's compensation. A payment by the board of education on account of this contract was recoverable by the county."
The county attorney, unless on a salary paid by the county for all services, should be remunerated for any services which he might be called upon to render for the county. The school board is an agency of a county created for the purpose of administering the school laws. I am of the opinion that the contract for the payment of services rendered by the county attorney should be made by the attorney and the county commissioners or other fiscal officer handling county affairs, rather than by the attorney and the county board of education. The recovery made by the county should be applied according to law. That would be a matter to be determined between the county and the educational authorities.

EDUCATION-County Board (1) A county board of education may not operate, from common school funds, a trade school which is restricted to veterans; although separate classes for veterans may be held in the common schools. (2) Common school funds may not be used for nursery schools.

Dr. M. D. Collins State Superintendent of Schools

March 26, 1946

Your letter of March 13th, enclosing letter from Honorable L. D. Langley, Superintendent Baldwin County Public Schools, received. You request that I

140

give an opinion on the two questions propounded by Mr. Langley in his letter.

Question 1 is as follows: "1. Does the County Board of Education have the right, under the new
Constitution and the existing laws of Georgia, to disburse regular school funds in connection with a program of Trade Training which is restricted to Vet:rans

of World War II?" The General Assembly in the 1945 session amended Code Section 32-937.
(Ga. L. 1945, p. 398). This Section as amended reads as follows: "Section 32-937. Free tuition; colored and white children separate; admis-
sion of World War Veterans. Admission to all common schools shall be gratuitous to all children between the ages of six (6) and eighteen (18) years residing in the districts in which thE: schools are located. Colored and white children shall not attend the same schools; and no teacher receiving or teaching white and colored pupils in the same schools shall be allowed any compensation out of the common school fund. Honorably discharged veterans of World War II may attend the common schools of this State, regardless of age, under rules and regulations promulgated by the State Board of Education. The State Board of Education is authorized to requirE:' the payment of fees for tuition or to provide the facilities free of charge if, in its judgment, it is most conducive to the welfare of the State and the veterans desiring to attend the common schools of this State."

This Section as amended gives veterans of World War II the right to

attend common schools of this StatE: regardless of age, under rules and regu-

lations promulgated by the State Board of Education.

This Section provides that children between the ages of six and eighteen

years of age shall be admitted to school without any payment of fee or tuition.

The State Board of Education could require the paymE::nt of fees by veterans,

or could teach veterans free.

,

Under the Equalization of Educational Opportunities Act (Ga. L. 1937, pp. 882-883) elementary grades include one to seven and high school grades include eight to eleven and no others. The public school system contemplates education of children between the ages of six and eighteen and in the grades of one through E:leven. Paragraph 1, Section 12, Article 8 of the Constitution authorizes the levy of tax to support and maintain common school systems as set up by the General Assembly.

I am of the opinion that a county board of education could not, from common school funds, set up and operate a trade training school which is restricted to veterans of World War II. Any school that uses common school funds should be open to and include all children of school age as prescribed by the General Assembly.

I do not mean to say that the county board of E:ducation, under rules and regulations prescribed by the State Board of Education, could not use common school funds for instructing World War II veterans in separate classes where the classes are maintained and operated in connection with the common school. I understand that the Department of Education is now operating a program whereby common school funds are used as a revolving fund and that the school boards are being reimbursed by the FE:deral Government for the training of veterans. This opinion does not hold that the same is illegal. I am of the

141
opmwn that county boards of education may use the common school funds to carry on such training as directed by the State Board of Education where reimbursed by the Federal Government.
Question 2 is as follows: "2. Similarly, can regular school funds be legally used for providing nE:cessary care and supervision for pre-school children (below six years of age) in Nursery Schools and Child Care centers?" On November 12, 1943, Judge T. Grady Head, while serving as Attorney General, rendered an opinion addressed to you which answ.ers this question. He came to the conclusion that under the Constitution counties did not have the right to levy a tax for common school purposE:s and then use the same for operating nursery schools. He held that the local units could operate nursery schools provided they were operated with funds derived from gifts or otherwise, than by taxation for public school purposes. I adhere to his opinion.
EDUCATION-County Board (Unofficial) (1) A county or county board of education has no power of eminent domain for school purposes. (2) The power of eminent domain may not bE: given a county or a county board of education by a local act.
March 26, 1946 Hon. W. Wright Abbot Attorney at Law Louisville, Georgia
Your letter of March 22nd received. You request that I advise whether or not a county board of education has the power of eminent domain to condemn land for school purposes, and also whether a local act could bE: passed giving that power to a county board of education in a specified county, and if such local act would be constitutional.
The power of eminent domain is inherent in. every sovereignty, but is dormant until the lawmaking body sets it in motion. See Botts v. Southeastern Pipe-Line Company, 190 Ga. 689.
So far as I have beE:n able to find the General Assembly has never delegated the right of condemnation to the county board of education. Under a number of decisions of the Supreme Court, and Court of Appeals, the county board of education is the agency through which the county acts in school matters. I am unable to find where the General Assembly has ever givE:n to the county authorities the right of eminent domain over property for school purposes. The only statutes that I do find are the statutes referring to condemnation for road purposes and drainage purposes. The Supreme Court in The Board of Commissioners of Bibb County v. Harris, 71 Ga. 250, stated:
"Before the right of eminent domain can be exercised by ordinaries or county commissioners, it must be clearly conferred by legislative enactment."
It is, therefore, my unofficial opinion that counties can not condemn property for school purposes without further legislation.
I am inclined to the view that it would bE: necessary to pass a general act authorizing all county boards of education, or the authorities of all coun-

142
ties, to exercise the power of condemnation for school purposes. The Constitution and statutes deal with county boards of education generally on a State wide basis. Their powers, so far, are made uniform throughout the State and I doubt very seriously whether or not a local bill could be drawn which would bE: constitutional to confer the power of eminent domain on the board of education on one single county.
I am sending Dr. Collins a copy of this letter, thereby calling his attention to the fact that school authorities do not have the right of eminent domain to acquire school sites as suggested in your letter. Should the Department of Education request this Department to prepare a bill to be introduced at the next Genr:ral Assembly to give to county boards the power of eminent domain to acquire school sites, we will be glad to prepare the bill for them.
EDUCATION-County Board A member of the county board of tax assessors is ineligible to hold office as a member of the county board of education.
April 25, 1946 Dr. M. D. Collins Superintendent of Schools
Your letter of April 23rd received. You request that I advise whether or not a member of a county board of tax assessors is eligible to the office as a member of the county board of education.
Section 92-6907 of the Code of 1933 provides as follows: "The members of the board, during the time they hold their offices and for one year thereafter, shall be ineligible to hold any State, county or municipal office, but they may be reappointed to succeed themselves as members of said board." Under this Section a member of the board of tax assessors of a county is ineligible to hold any State, county or municipal office during his tenure of office as tax assessor or one year thereafter. Section 89-103 of the Code provides as follows: "No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than onr: county office, except by special enactment of the legislature; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment." Under this Section of the Code a person can not hold two county offices at one time. Membership of a county board of education is a public office. See Clark v. Long, 152 Ga. 619. A member of a county board of education is a county officer. Stanford v. Lynch, 147 Ga. 518, and casE:s therein cited. Since a member of a county board of education is a county officer, a member of a board of tax assessors of a county would be ineligible for appointment to fill the office on the county board of education. Since a member of the county board of tax assessors is also a county officer one person could not hold both of said offices at the same time.

143
This opmwn is in line with one rendered by Governor Ellis Arnall, while serving as Attorney General, on August 23, 1940. Opinions of the Attorney General, 1939-41, page 103.
EDUCATION-County Board (Unofficial) The grand jury may not select two members of the county board of education from the same militia district or locality.*
July 26, 1946 Hon. Dan W. Hammack Edison, Georgia
In your letter of July 18 you request that I advise whether or not the grand jury is required, under the new Constitution, to select members of the county board of education from difftrent districts as was required prior to the adoption of the 1945 Constitution.
Paragraph 1, Section 5, Article 8 of the Constitution of 1945 provides that each county, exclusiv: of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a county board of education. It likewise provides that the members of the county board shall be selected from that portion of the county not embraced within the territory of an independent school district.
Section 32-901 of the Code of 1933, being a part of the School Law of 1919, likewis: provided that each county of the State shall compose one school district and be confided to the control and management of a county board of education. Under Section 32-902 of the Code of 1933 the grand jury of the county was required to select the board of education. Under Section 32-903 of the Code of 1933 the grand jury selecting the members of the county board is prohibited from selecting one of their own number and from selecting any two from the same militia district or locality, and from stlecting any person who resided within the limits of the local school system operated independently of the county board of education.
In the case of Wheeler v. Board of Trustees of Fargo Consolidated School District, 200 Ga. 323, the Supreme Court referred to Section 32-901 of the Code of 1933 and ruled that the Constitution of 1945 simply made constitutional Section 32-901 of the Code, and that was all that this provision did.
Section 32-903 of the Code is still of full force and :ffect unless it contravenes the Constitution. Since the Supreme Court has ruled, as above stated, I am of the opinion that Section 32-903 of the Code remains of force and effect and that the law now requires the grand jury to select members of the board of education from different districts as required by said Section.
*See McCollum et al. v. Bass et al~ 201 Ga. 537, decided Nov. 14, 1946, holding Code Sec.
32-903 was not repealed or superseded by the 1945 Constitution.

144
EDUCATION-County Board The failur(: of a person elected as a member of the county board of education to accept his commission creates a vacancy in the office. August 20, 1946
Dr. M. D. Collins State Superintendent of Schools
This will acknowledge your letter of August 13th, in which you request my opinion as to the situation wherein the Commission issued to a gentleman in Wilcox County to be a member of the County Board of Education has not been accepted.
The situation presents two questions. First, does a vacancy exist on the County Board of Education, and secondly, if existing, how shall it be fillE:d?
The members of the County Board of Education are public officers, and their election, term of office and method of filling vacancies are determined by the Constitution of the State of Georgia. (Article 8, Section 5).
To determine whether a vacancy (:Xists in a public office, an examination of how vacancies are created must be made. The Georgia Code of 1933, Section 89-501, provides that all offices in the State shall be vacated: ... (6) by failing to apply for and obtain commissions or certificates, or by failing to qualify or give bond, or both, within the time prescribed by the laws and Constitution."
The Cod(: does not specify the time for obtaining a commission, but reads as follows:
"89-408. Within what time official bonds to be filed.-... all county officers shall have until the first day of January next after the election to file their several bonds as required by law."
From the above quoted Code Section, a vacancy exists, and it is my opinion that such vacancy should be filled as prescribed in Article 8, Section 5 of the Constitution, and the prE:sent outstanding Commission should be recalled by the issuing authority.
EDUCATION-County Board (Unofficial) A county board of education may not pay insurance premiums for the protection of school buildings owned by a municipality.
September 20, 1946 Dr. M. D. Collins State Superintendent of Schools
Your letter of September 17, enclosing letter from Hon. C. A. Hudson, County School Superintendent of MeriwethE:r county, received. Mr. Hudson states that since the new Constitution has eliminated local tax districts, he would like to know if the County Board of Education is justified in paying insurance premiums on school buildings erected by the city of Manchester where the title to such buildings are in the city.
I do not believe that it would be a legal expenditure of school funds to pay insurance premiums on buildings owned by the city of ManchestE:r. If the buildings were owned by the County school system, the County Board would be authorized to pay insurance premiums for the protection of this property.

145

EDUCATION-County Board (Unofficial) ELECTIONS-Constitutional Amendments
(1) A member of a county board of registrars is not ineligible to serve as a member of the county board of education. (2) Amendments to the 1945 Constitution are voted on in the general election at which membE:rs of the General Assembly are chosen.

April 15, 1947

Hon. C. E. McLendon

Registrar, Colquitt County

Moultrie, Georgia

This will acknowledge your letter of recent date requesting an opinion

on the question of whether or not a person may serve on the Board of Regis-

trars and also as a member of the County Board of Education.

A member of the County Board of Education is a county officer. Stanford

v. Lynch, 147 Ga. 518, Cooper v. State, 101 Ga. 783, Coleman v. Glynn, 103

Ga. 458.

Section 89-103 of the GE:orgia Code provides:

"No person shall hold in any manner whatever or be commissioned to hold

at one time, more than one county office, except by special enactment of the

Legislature; . . ."

This necessarily poses the question, "is a registrar a county officu"?

In the case of Andrews et. a!. v. Butts County et. a!., 29 Ga. App. 302, it

is held:

"The office of county registrar is not a 'county office' within the pro-

visions of the Act of 1913 as to ineligibility of members of a county board

of tax-assessors to hold county offices."

This case further states that, "County officers are virtually defined by

the constitution of this State as officers who are elE:cted by the qualified

voters of their respective counties, or districts, and who hold office for four

years, and who can only be removed from office on conviction for malpractice

in office. A county registrar is not elected by the qualified voters of his

county or district, but is appointed by the judge of the superior court of the

county, and can be removed from office at the will of the judge."

See also, McLain v. State, 71 Ga. 279, Barnes v. Watson, 148 Ga. 822,

Richter v. Board of Education, 149 Ga. 32.

From a review of the above cited cases, I am of the opinion that a person

who is a member of the County Board of Education can also serve on the

Board of Registrars, without violating that provision of law prohibiting a per-

son from holding more than one county office.

'

With reference to your inquiry concerning a new voters list for the elec-

tions this summer on amendments, I wish to call to your attention the pro-

vision in the new Constitution, Article 13, Section 1, which prescribes that

amendments to thE: Constitution will be voted on in the general election at

which members of the General Assembly are chosen.

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EDUCATION-County Board (Unofficial) (1) When a county has only four militia districts, one member of the county board of education should be selected from the county at large. (2) A member of the county board of education should tender his resignation to the State Superintendent of Schools. (3) The county board of education may fill a vacancy on the board until the grand jury convenes.
October 15, 1947 Hon. E. L. Forrester Solicitor General Leesburg, Georgia
Your letter of October 8 received. You asked several questions relating to the appointment of members to the county board of education. I answered the questions for you over the phone and you requested that I confirm my answtr by letter.
In your first question you asked whether or not under the Constitution of 1945, Article 8, Section 5, Paragraph 1, a county having only four militia districts would be required to appoint five members to the county board of education. This question is asked because the statute, Code Section 32-903, provides that no two members of the county board shall be selected from the same militia district and the decision of the Supre:ne Court in McCullum v. Bass, 40 S. E. (2) 650, which holds that the statute remains of force after the adoption of the new Constitution.
I am of the opinion that the Constitution requiring five members should control and that where the county has only four districts a member should be appointed from each district and the fifth from the county at large to be selected from the territory in the .discretion of the grand jury making the appointment.
I think that this answer also covers your second question. In your third question you request that I advise as to whom a county board member should tender his resignation as a member, where he desires to resign from the board.
I am of the opinion that Section 32-906, being a part of the School Act of 1919, remains of force and such a member desiring to resign should tender his resignation to the State Superintendent of Schools as provided for in Section 32-906 of the Code.
Since the adoption of the 1945 Constitution which creates a constitutional office of the county board and the county superintendent, I have wondered whether or not Section 32-906 remains of force. However, our courts have said that the adoption of the Constitution does not have the effect of repealing or changing the statutory school laws, and for that reason I am of the opinion that Section 32-906 remains of force and that the General Assembly would have the right to direct the officer to whom a resignation would have to .be made.
In your fourth question you asked whether the grand jury, if it is in :session at the time of the resignation of a member, should make the appointment, or whether the Board should make the appointment to hold until the ,convening of the next grand jury.

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I censtrue the Constitution to mean that the grand jury is the appointing power of the members of the board and that if they are in session at the time a vacancy occurs it would be the duty of the grand jury at that time to fill the vacancy. I think the Constitution contemplates that if a vacancy occurs at a time whE:n the grand jury is not in session and when it can not make the appointment, there should be no vacancy between that time and the convening of the grand jury and, therefore, in such a case it is provided that the members of the board shall appoint a person to hold until the grand jury convenes, so that the grand jury can make the appointment as contE:mplated by the Constitution. If the grand jury is in session, there is nothing to prevent the grand jury from exercising thE: power of appointment as given by the Constitution.
EDUCATION-County School Superintendent (Unofficial) A member of the county board of commissioners of roads and revenues may not become county school superintendent.
November 27, 1945 Hon. Noel T. Lucas, Sr. Talbotton, Georgia
Your request in your letter of November 9th that I advise whethE:r or not it is legal for one person to hold the office of county school superintendent and the office of county commissioner.
As a matter of information I refer you to the case of Malone v. Minchew, 170 Ga. 687, where the Supreme Court has held that a member of a county board of commissioners of roads and revenues is a county officer, and to the casE: of Bower v. Avery, 172 Ga. 272, where the Supreme Court" of the State has held that a county school superintendent is a county officer within the meaning of the Civil Code.
Section 89-103 of the Code of 1933 is as follows: "No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature; nor shall any commissioned officer be deputy for any other commissoined officer, except by such special enactment." The Act approved February 16, 1876 (Ga. L. 1876, p. 291) in Section 3 dE:fines the qualifications of members of the board of commissioners for the County of Talbot. This section provides in part as follows:
"*** Said commissioners shall be disqualified from holding any other county office, but eligible as members of the General Assembly. ***'"

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EDUCATION-County School Superintendent; County Board (Unofficial) (1) Residents of an independent school district are not eligible to vote for county school superintendent. (2) Residents of an independent school district may not serve as members of the county board of education. (3) Residents of an independent school district are eligible to be elected or appointed as county school superintendent. (4) The county board of education may not levy a county-wide school tax on property located in an independent school district.
July 29, 1946 Hon. E. H. Goldin County School Superintendent Buchanan, Georgia
In your letters dated July 19th and July 24th you request my unofficial opinion on four questions involving the right of citizens of independent school districts to vote for county school superintendent and the eligibility of persons to hold the office of county school superintendent.
In question 1 you requested that I advise whether or not citizens of an independent school system are eligible to vote for county school superintendent.
Section 32-1002 of the Code of 1933 provides that county superintendent of schools shall be elected by tht: qualified voters of their respective counties, however, it contains the following provision:
"Provided, if there is in any county one or more independent school systems not under the supervision of the county superintendent, the voters of such independent system or systems shall not vote in any primary or election for the county superintende:nt."
Under this section qualified voters residing in the limits of a quasi independent school district are permitted to vote for the county school superintendent. While the Act of 1907 referred to in your letter authorizes the City of Bremen to operate an independent school system, you state facts which might have the effect of creating a quasi indepe:ndent school system. This question being one which involves facts it would be improper for me to undertake to pass upon the question of whether or not the City of Bremen operates an independent school system or only a quasi independent system. If Bremen is operating an indepe:ndent system not under the supervision of the county superintendent of schools the voters residing within the limits of the independent system would not be eligible to vote for the county school superintendent.
In your second question you requ~t that I advise whether or not a citizen living within the independent school system should be permitted to serve as a me:mber of a county board of education.
Paragraph 1, Se:ction 5 of Article 8 of the Constitution of 1945, is sufficient answer to this question. The Constitution provides in part as follows:
"The members of the county board of education of such county shall be selected from that portion of the county not embraced within the territory of an independent school district."
Section 32-903 of the Code of 1933 provided to'the same effect. I am of the opinion that this Section of the Code remains of force and effect after the

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adoption of the Constitution because the same does not conflict with the Constitution. The Supreme Court in the case of Wheeler v. Fargo Consolidated School District, 37 S. E. 2d 322, held that the only thing that the Constitution of 1945 did was to make constitutional Section 32-901 of the Code which provided that evtry county shall compose one school district and shall be confided to the control and management of a county board of education.
In question 1 of your letter of July 24th you requested that I advise whether or not it is lawful for a county school superintendent to reside within the limits of an independent school district. There are a number of cases holding that it was not legal for a person who resided iii.. and was a qualified voter of an independent school system to hold the office of county school superintendent. Among those cases are Avery v. Bower, 170 Ga. 202, Bower v. Avery, 172 Ga. 272, and Phillips v. Rozar, 172 Ga. 862.
All of these decisions were rendered prior to the passage of an Act in 1931. In 1931 the General Assembly amended subparagraph 7 of Section 89-101 of the Code of 1933. This Section provided that no person shall be eligible to hold any county office unless he shaul have been a bona fide citizen for two years prior to his election or appointment and was a qualified voter. Tht 1931 amendment added the following proviso:
"Provided, however, that any person who shall have been a bona fide citizen of a county for two years shall be eligible to be elected or appointed as county school superintendent, even though said person should not reside in that part of the county which is under the supervision of the county superintendent of schools and ineligible to vott in the election for such superintendent of schools."
Following the approval of this Act the Supreme Court in Marshall v. Walker, 183 Ga. 44, held that a citizen of an independent school system was eligible to be elected county school superintendent, and held that the cases above cited had been changed by the Act of 1931. It seems, therefore, that a citizen of an indtpendent system would be eligible to be elected county school superintendent.
In question 2 of your letter of July 24 you request that I advise whether or not it is lawful for the county board of education to levy a county wide school tax on the property located within the city limits of Bremen.
If the City of Bremen operates its schools as an independent system it would not be lawful for the county board of education to levy tht maintenance tax for education. Section 12, Paragraph 1, Article 8 of the Constitution provides that the fiscal authorities of the several counties shall levy a tax for the support of education of not less than five mills nor greater than fifteen mills as recommended by the county board of education upon all taxable propHty in the county located outside independent school systems.
You must understand, of course, that this is a matter that should be presented to your County Attorney for his advice.

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EDUCATION-County School Superintendent A county school superintendent may be employed as a teacher where the county board of education finds no conflict in duties, although the practice should b.: discouraged.
November 13, 1946 Hon. J. I. Allman Assistant State Superintendent of Schools
Your letter of November 1st, requesting that I review the opinion rendered by Honorable M. J. Yeomans, former Attorney General, dated February 15, 1933, Opinions of the Attorney General, 1933-34, page 169, relating to the employment of the county school superintendent as a teacher, received.
Judge Yeomans rul.:d that a county school superintendent could be employed by the county board of education as a teacher in the schools of the county, where the county board in the exercise of its judgment should deem that the county superintendent of schools could perform the duties of a teacher without conflicting with his duties as county superintendent of schools.
The Constitution of 1945 makes the office of county school superintendent a constitutional office. See Paragraph 1, S.:ction 6, Article 8 of the Constitution. The School Act of 1937, Section 32-612, Cumulative Pocket Part of Annotated Code, provided that the State Board of Education should provide, by regulation, for the classification of all teachers in the public schools of this State, except county school superintendents. The School Act of 1919, as well as the Constitution of 1945, provides that the county school superintendent shall be el.:cted by the qualified voters of their respective counties. The county school superintendent must give bond and shall have an office at the courthouse of the county. See Sections 32-1005 and 32-1012 of the Code.
Section 32-1006 of the Code of 1933, as amended, relating to the salary to be paid to the county superintendent of schools by the State was again amended by Act No. 550, approved January 31, 1946. This Section as finally amended provides that the county school superintendent shall be certified and classified by the State Board of Education as teachers are now classified and certified under the School Act of 1937. It provides that the Superintendent of Schools shall receive salaries in amounts fixed by the State Board of Education, based on the classification and certification of a sum of not less than $70 nor more than $100 per month. This salary is to be paid monthly out of State school funds and in addition thereto the county board of education shall allow for additional compensation for the services to be rendered, as may be in their judgment proper and just.
The county school superintendent is required to take an oath of office as other officers of the State. The county superintendent constitutes the medium of communication b.:tween the State Superintendent of Schools and subordinate school officers. He is the agent of the county board. He is required to audit all accounts before application is made to the Board for payment. He is required to keep a record of his official acts and to file all books and papers pertaining to his office. It is his duty to enforce all regulations, rules and instructions of the State Superintendent of Schools and of the county board of education according to the laws of the State and the rules and regulations made by the county board of education. He is, together

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with tht: State Supervisors, required to superintend the county normals and

institutes for the teachers of the county. The county superintendent is required

to visit every school, both white and colored, within his county which receives

State aid, at least once every sixty days, and to familiarize himself with the

studies taught at said school, and to see what advancement is being made by

the pupils, visit with the teachers and otherwise aid and assist in the advance-

ment of education. Section 32-1009.

In some instances tht: county superintendent superintends examination of

teachers. He is required to suspend teachers under his supervision for non-

performance of duty, incompetency, immorality or inefficiency, and for other

good and sufficient causes. Section 32-1010.



The county superintendent of schools shall have the power and it is his

duty, to revoke licenses for incompetency, immorality, cruelty to pupils, or

neglect of duties. CodE: Section 32-1019.

County boards of education have control and management of the school

affairs of a county. They are authorized to make contracts with teachers.

See Sections 32-901, 32-909 and 32-913. Paragraph 1, Section 5, Article 8 of

the Constitution of 1945.

Teachers are required to make and file with the county superintendent of

schools a full and complete report relating to school activities. See Section

32-914 of the Code.

The Equalization Act of 1937 in Section 32-614, Cumulativf: Pocket Part

of the Code, provides for the payment of teachers and for the payment of

county school superintendents.

I do not find any statute which would prohibit the county board of edu-

cation from employing the county superintendent of schools as one of the

teachers in the schools of the county, so long as the county board in the dis-

charge of its duties, find that the employment of the superint:ndent as a

teacher would not conflict with the duties of the county superintendent of

schools. Under the statutes pointed out above, there would be few instances,

if any, where the duties of the two would not conflict. For instance it would

he hard to reconcilE: the conflict where a teacher is required to devote his time

to teaching in a school and at the same time perform the duties as required by

Section 32-1909.

It is the policy of this Department to adhere to opinions rendered by

former Attorneys General unless the law has been changed or modified, or it

is made to appear clearly that the opinion was erroneous. Therefore, we do

not overrule the opinion of Judge Yeomans but do point out that in our

opinion the duties appear to be inconsistent and that since favorable legisla-

tion has bef:n passed for the benefit of the county superintendents of schools

that the practice of employing a superintendent as a teacher should be

discouraged.

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EDUCATION-County School Superintendents; Teacher Retirement (Unofficial)
(1) A county school superintendent is entitled to the ben:fits of the teachers' retirement act. (2) Elective officers under the teachers' retirement act are not required to retire upon attaining the age of seventy.
January 6, 1947 Dr. M. D. Collins State Superintendent of Schools
Your letter of January 2nd enclosing a copy of a letter from Hon. M. W. Harrell, county school superintendent of Dodge County, received. Mr. Harrell states that his right to hold. office is being questioned because he has passed the age of seventy years and seeks advice as to whether or not he is competent to continue to perform the duties of the office to which he was elected.
Paragraph 1, Section 6, Article 8 of the Constitution of 1945 provides that there shall be a county school superintendent, who shall be the executive officer of the county board of education. It also provides that he shall be elected by the people and his term of office shall be for four years and run concurrently with other county officf:s. The qualifications and salary of the county school superintendent shall be fixed by law.
Section 32-1002 of the Code of 1933 likewise provides that the county superintendent of schools shall be elected by the qualified voters of their respective county for terms of four years. Section 32-1004 defines the qualifications of county superintendents. The qualifications outlined by this Section are that he, shall have had at least three years practical experience in teaching, holding a first rate high school license, or in lieu thereof shall have a diploma from a literary school or normal school, or shall have had five years experience in the actual supervision of schools, or stand an approved examination before the State Board of Education as to his qualifications and shall be a person of good moral character, never convicted of any crime involving moral turpitude.
There is, so far as I know, no statute which prohibits a person seventy years old from holding a public office. I am, therefore, of the opinion that Mr. Harrecll, even though seventy years of age, is entitled to hold the office to which he was elected for the term for which the people elected him.
The question presented involves a provision of the Teacher Retirement Act. Subparagraph 5 of Section 32-2901 of the 1945 Cumulative Pocket Part to the Annotated Code defines the word "teacher". Under this paragraph the word "teacher is defined to mean any person employed not less than one-half time in the public schools as a classroom teacher, or in the supervision of the public schools or any employee of the Stat: Board of Education employed in
a teaching or supervisory capacity '' * *' school librarians and administrative officials who supervise teachers * * *'.
The Act approved January 31, 1946, (Ga. L. 1946, pp. 73-74), provides that each county superintendent of schools shall be certified and classified by the State Board of Education as teachers are now classified and certified undu the provision of the Act to equalize educational opportunities throughout the State,. It provides that the county superintendent of school shall receive

153
salaries in amounts fixed by the State Board of Education, based on classification and certification in the sam: manner as teachers are paid under said Act. It is also provided that in no event shall the salary be less than seventy dollars per month. The salaries are to be paid monthly out of the school funds of the State, and in addition thereto the county board of education shall allow for additional compensation as may be in their judgm:nt proper and just.
The Retirement Board classifies county school superintendents as teachers and as eligible for teacher r:tirement benefits. Under the provisions of law just referred to, I think such classification is correct. The Teacher Retirement Act in subparagraph (b) of Section 32-2905 of the Cumulative Pocket Part of the Annotated Code provides that any member in service who on the commencement date has attained the age of seventy or who ther:after attains the age of seventy shall be retired forthwith on the service retirement allowance; except that with the approval of his employer he may remain in servic: until the end of the school year. Upon the recommendation of the employer and approval of the board of trustees a member may be continued in service for a period of one year following each such recommendation and approval, but not beyond Jun: 30, 1949.
While county school superintendents are classified as teachers so that they may receive the benefits of the Teacher Retirement Act, I do not think that it is contemplated that an elected officer should be retired on attaining the age of seventy. I do not believe that an elective constitutional officer who is elected by the people for a term of four years can be retired from the office before the end of his term without his consent, so long as he performs the duties of the office. I think that this provision was intended to apply to teachers who are not elect:d officials.
EDUCATION--GEORGIA MILITARY COLLEGE (Unofficial) (1) Exclusive jurisdiction over Georgia Military College, including the grades where common school subjects are taught, is vested in the Board of Trustees of the College. (2) Georgia Military College is entitled to common school funds for teaching common school grades which are open to the general public.
Novembf:l' 26, 1946 Dr. M. D. Collins State Superintendent of Schools
Your letter of October 30th enclosing a copy of a letter from Hon. L.. D.
Langley, County Superintendent of Schools of Baldwin County, received. Mr. Langley requested that you obtain an official opinion on five specific questions all dealing with the status of Georgia Military College, located at Milledgeville, and with the authority or supervision that the county board of education has over that part of the college where common school subjects are taught.
I find that the General Assembly of th: State has passed many acts dealing with the College. It first came into existence in 1879 as the Middle Georgia Military and Agricultural College. The General Assembly later changed the name to Georgia Military College. I deem it unnecessary to refer specifi-

154
cally to all of the acts or to the many rights, powers and privileges granted by the General Assembly.
An Act approved Dt:cember 17, 1900 (Ga. L. 1900, p. 85) changed the name of the College from Middle Georgia Military and Agricultural College to Georgia Military College and provided that the trustees should organize a collegiate college as a department of the University of Georgia and gave the trustees power to receive donations, make purchases, prescribe rult:s and regulations, and to do whatever else necessary and proper for the establishment and successful administration of the college. Section 2 of the Act removed from the county board of education the right to examine and pass upon qualification of teachers employed to teach in the grades and placed the power in the trustees of the College. It required the county school superintendent to pay over to the trustees the portion of the public school fund to which it may be entitled by reason of teaching common school subjects.
An Act approved August 1, 1922 (Ga. L. 1922, p. 110) abolished the board of trustees which existed at that time and provided for the election of trustees of Georgia Military College and created a body corporate to be known as the Board of Trustees of Georgia Military College. Section 13 of the Act gives the Board of Trustees the right to elect and employ all teachers and to fix their compensation. The title to property of the college is vested in the corporation.
The General Assembly in 1939 (Ga. L. 1939, p. 410) gave tht: Board of Trustees power to erect and equip buildings on lands owned, or leased, by the trustees, or on land set aside to be used by the corporation for school purposes. The Board of Trustees were given powers usually exercised by such corporations and other powers necessary to effectuate the College's usefulness.
Generally the General Assembly in other acts authorized the use of the old capitol prop_erty by the trustees, empowered the city of Milledgeville to make donations of land or annual cash endowment and empowered the city to levy tax to assist in the support of tht: College or school.
Taking into consideration the acts dealing with the school, I am of the opinion that the trustees of Georgia Military College have exclusive jurisdiction over the College, and over any and all courses which the trustees may provide in their school curriculum. I am of the further opinion that the county board of education and the city of Milledgeville are without power to interfere with the administration of the affairs of the corporation, or the regulations made by the trustees for the government of pupils who receive training either in grammar school, high school or college courses taught by the Georgia Military College. The body of trustees administrating the affairs of the College would have jurisdiction to determine the beginning and closing of a school day and could require all pupils to comply with their regulations. The county board of education is without powt:r or jurisdiction to interfere.
I am of the further opinion that the College is not a department or branch of the University System of Georgia since it is not named in the act providing for the Board of Regents of the University System of Georgia. See Chapter 32-1, Code of 1933. The Act of 1931 (Section 32-102, Codt: of 1933) named the difft:rent schools which constituted the branches of the University of Georgia and is, therefore, in conflict with the provision of the local act here-

155
tofore cited which named the College as a part of the University System, I am, therefore, of the opinion that the Board of Regents of the University System of Georgia has no jurisdiction over the College.
The General Assembly has dirE:cted the county superintendent of schools to pay over to the treasurer of the board of trustees of the college the portion of the public school fund to which the college may be entitled for teaching common school grades. Because of this provision, and this direction, I am of the opinion that the College is entitled to recE:ive assistance from the State for teaching common school grades where such courses are open to the general public in a manner consistent with the school laws of this. State.

EDUCATION---Georgia Military College The proportionate part of the common school funds to which Georgia Military College is entitled is allocated and paid to the treasurer of the Board of Trustees of the CollegE: by the Baldwin County Board of Education.

December 20, 1945

Dr. M. D. Collins

State Superintendent of Schools

Your letter of December 12th received. You request that I advise whether

or not the proportionate part of public school funds which have been going

to Baldwin County, to which Georgia Military CollegE: is entitled, should be

sent directly to an official of the college instead of to the County Superin-

tendent of Schools of Baldwin County.

Section 2 of an Act approved December 17, 1900 (Ga. L. 1900, p. 85)

empowers the trustees of the College to pass upon the qualification of the

teachers employed in the grades where pupils are taught and are entitled to

receive the benE:fits of the common school fund. This Section also provides

that it shall be the duty of the County School Commissioner of Baldwin County

to pass over to the treasurer of the Board of Trustees that portion of the pub-

lic school fund to which it may be entitled under the law and also that fund

that may be apportioned to the College by the County Board of Education

of Baldwin County. In my opinion of NovE:mber 26, 1945, I came to the conclusion that the

Trustees of the College had exclusive jurisdiction over all and any courses

which they desired to teach. I also concluded that the County Board of Edu-

cation and the City of Milledgeville were without power to interfere with the

administration of the affairs of the College, or the regulations made by the

Trustees for the operation of the school. The Act creating the College in-

corporates the same and authorizes thE: corporation to teach common school

subjects.



It is my information that the school receives pupils from the City of Mil-

ledgeville and throughout the County of Baldwin. There is no specific territory

mentioned in the Act creating the corporation. The County of Baldwin levies

its maintenance tax on the property located in Milledgeville and the City of

MilledgevillE: is authorized to make donation to the College and to levy a tax

156
for that purpose. In my opm1on of November 26, I did not come to the conclusion that the College and school amounted to an independent system.
Under the Equalization or Seven Months School Act passed in 1937, counties and independent school systems were made local units of administration. The local units were divided in five groups based upon population and on areas of square miles. Teachers are alloted by the State accord'ng to the group in which the system falls. The Act provides for the distribution of the common school fund on the seven months basis in accordance with the salary schedules provided by the Board of Education, and for the payment of the salaries of county school superintendents and expenses of administering the local units. (See Ga. L. 1937, pp. 882-883).
The Act of 1937 was amended by an Act of 1939. (See Ga. L. 1939, p. 408). The Act of 1937 made a provision for schools created under special acts. The Act of 1939 repealed this provision. See Board of Public Education and Orphanage for Bibb County v. State Board of Education, 190 Ga. 581, and Sta:e Board of Education v. County Board of Education of Richmond County, 190 Ga. 588.
Prior to the amendment of 1939 Georgia Military College, operating as a school for the common school grades, would possibly have been entitled to receive directly from the State an apportionate part of the funds allocated on a pupil basis. See State Board of Eduo;ation v. Board of Public Education of Savannah, 186 Ga. 783, and Board of Education and Orphanage for Bibb County v. State Board of Education, 186 Ga. 200.
However, the amendment of 1939 seems to have the effect of bringing independent systems and independent schools within the Act of 1937. This being so there is no way for the State Board of Education to determine the proportional part of the State funds that should be paid to Georgia Military College for teaching common school subjects. After the State Board has allocated to Baldwin County its quota of teachers and determined its proportional part of the State public school funds, it is a matter for the County Board of Education to determine the teachers it will allot out of the county system to receive pay from the State for teaching in the common school branch of the College and it would also be for the County Board of Baldwin County to determine the part of the fund raised by local taxation that should be allocated to the College for caring for its common school pupils. The Act of 1900 requires the County Board of Baldwin County to turn this part over to the treasurer of the Board of Trustees for the College.
I am, therefore, of the opinion that the State Board of Education should continue to disburse its funds for school purposes of Baldwin County to the County School Superintendent and the Board of Education of Baldwin County.

157
EDUCATION-Independent School Systems An independent school system, when approved, may receive funds from the Veterans Administration as tuition for veterans receiving a training course in the system.
June 7, 1946 Dr. M. D. Collins Superintendent of Schools
Your letter of May 27th received. You refer to correspondence between yourself and Dr. Mark Smith, Superintendent Bibb Col!nty Schools, and request that I advise whether or not it is possible for the Bibb County schools to recE:ive pay from the Veterans Administration as tuition for veterans receiving a training course in the Bibb County School system.
The Servicemens' Readjustment Act of 1944 as amended provides in substance that honorably discharged veterans are eligible and entitled to take training at any approved educational or training institution, and that the Administrator shall pay to the educational or training institution said tuition fees and costs.
Under the Equalization of Educational Opportunities Act of 1937 (Chapter 32-6, Cumulative Pocket Part of Annotated Code) the units of administration are the several counties of the State and the various independent school systems E:stablished by law:.
The Supreme Court in State Board of Education v. County Board of Education of Richmond Councy, 190 Ga. 588, held that the Act of 1937 as amended by the Act of 1939 made the provisions of the Act of 1937 applicablE: to independent school systems.
Under the provisions of the Servicemens' Readjustment Act and the Georgia authority cited above, I am of the opinion that Bibb County system stands in thE: same category as other schools of the State School System, and that the Bibb County School System, after approval as other schools are approved, would be entitled to receive payment from the Administration for tuition for veterans enrolled as pupils therein.
Section 32-937 of the Code as amended by the Act of 1945 (Ga. L. 1945, p. 397) provides in part as follows:
"Honorably discharged veterans of World War II may attend the common schools of this State, rE:gardless of age, under rules and regulations promulgated by the State Board _of Education. The State Board of Education is authorized to require the payment of fees for tuition or to provide the facilities free of charge if, in its judgment, it is most conducive to the welfare of the State and the veterans desiring to attend the common schools of this State."
It is my opinion that this quoted provision of SE:ction 32-937 applies alike to the Bibb County School System as it applies to other schools of the State School System. Bibb County School System when approved would be entitled to receive from the Administrator of the Federal Servicemens' Re_adjustment Act tuition fees for veterans as other schools of the State System are entitled to recover.

158
EDUCATION-Public School Funds Public school funds may be used to pay annual fet::s to accrediting associations and membership dues to the Georgia High School Association.
July 12, 1946 Dr. M. D. Collins State Superintendent of Schools
Your letter of July 9th received. With your letter you enclose one from Honorable S. F. Burke, Superintendent of Schools at Thomaston, Georgia, in which he requests aR opinion on the question of whether or not boards of education may pay the annual fee to the Southern Association of St::condary Schools and Colleges for accrediting; the annual application fees to the State Accrediting Commission for accrediting of high schools and rating elementary schools and the annual membership dues to the Georgia High School Association.
I have been unable to find where any of our courts have passed upon the legality of paying the fees mentioned from the school funds. In Burke v. Wheeler County, 54 Ga. App. 81 (4), the Court of Appeal:;; ruled that public school funds can not be used for other than school purposes. It is also a general principle of law that public funds can not be expended unlt::ss such expenditure is authorized by law. The question, therefore, resolves itself into one of fact and that is whether or not the paying of the fees mentioned in Mr. Burke's letter would be for school purposes. The 1937 School Act, Section 32-614 of the 1945 Cumulative Pocket Part of the Code provides in subparagraph 3 as follows:
"To pay each local unit of administration, as hereinbefore defined, for the purpose of meeting local administrative expenses, the cost of operating and maintaining school plants, meeting fixed charges, the expense of auxiliary agencies, the expenses of transportation, and othH' administrative expenses, a sum sufficient, when added to the total amount which may be raised by such local unit of administration, by a local tax levy of five mills, to equal one-third of the amount admitted to such local unit of administration of salaries."
Under this paragraph public school funds may be used to pay local administrative t::xpenses, the cost of operating and maintaining school plants, meeting fixed charges, the expense of auxiliary agencies, the expenses of transportation and other administrative expenses.
It is my opinion that the associations mentioned would be considered auxiliary agencies working in cooperation with the different school units to keep the school systems in a uniform plan, and to assist the school units of the State in maintaining high standings. I am, therefore, of the opinion that it would be legal to pay the fees mentioned by Mr. Burke out of public school funds.

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EDUCATION-Religious Instruction (Unofficial) (1) Reading of thE: Bible is required in all schools recetvmg State funds but a pupil may withdraw upon the writt~n request of his parent or guardian. (2) Instruction regarding the Bible, which avoids denominationalism, is not prohibited in the public schools if approved by the State Department of Education.*

Rev. E. L. Barber, Pastor Hull Memorial Presbyterian Church Savannah, Georgia

April 22, 1946

This will acknowledge your letter inquiring as to the Georgia law dealing with religious instruction in the public schools, and asking for my opinion "as to whether religion, as such, or the Bible, can be taught in the schools of Georgia under the existing law." You state that you are not referring to Sectarianism.
I think I can give you the information you desire by referring you to Section 32-705 of the Code of Georgia of 1933. This Section was enacted in 1919, and amendE:d in 1921, and when the balance of the Chapter was repealed in 1937, it was specifically retained in the Code and it is still the law in Georgia. The portion of this Section dealing with Bible reading is as follows:
"Provided, however, that the Bible, including the Old and New Testaments, shall be read in all the schools receiving State funds, and that not less than one chapter shall be read at somE: appropriate time during each school day. Upon the parent or guardian of any pupil filing with the teacher in charge of said pupil in the public schools, a written statement requesting that said pupil be excused from hearing the said Bible read as required by this section, such teacher shall permit such pupil to withdraw while the reading of the Bible is in progress. Such request in writing shall be sufficient to cover the E:ntire school year in which said request is filed."
Denominationalism in the schools receiving state funds is, of course, another matter. The Constitution provides that state funds may not be used directly or indirectly, in aid of any church, sect, or denomination. The course of study in local schools is in some instances set by local authorities, with the approval, where State funds are used, of the State Department of Education. It is generally an administrative matter to be sE:ttled by. the local authorities, provided, of course, that subjects required by State law are not omitted.
It therefore seems to be quite possible that if local authorities desired to include in a course of study a study of the Bible as such, without the injection of any denominationalism, and if the DE:partment of Education approved the action of the local authorities, such course could be taught. I find nothing in the Code which would forbid such teaching.
However, if objections were made, it is possible the Constitutional provision, "All men have the natural and inalienable right to worship God, each

*Compare Illinois ex rei. McCollum v. Board of Education of School Dist. No. 71, 68 S. Ct. 461, decided March 8, 1948.

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according to the dictates of his own conscience, and no human authority should, in any case, control or interfere with such right of conscience." (Article 1, Section 1, Paragraph 12), could be held to be violated by the method of tEoaching. It was decided, nevertheless, in the case of Wilkerson, et al v. the City of Rome, ei: al, 152 Ga. 762, that a city ordinance of the City of Rome requiring the reading of the Bible and the offering of daily prayers in the public schools of that city, did not violate any of the constitutional provisions concerning religion. There is in that case a very complete discussion of these questions, including a dissenting opinion by Justice Hines expressing his disagreEoment with the conclusion arrived at by the majority of the Supreme Court of Georgia.
It is my unofficial opinion that the laws of Georgia require the reading of the Bible in public schools, permitting the withdrawal of any pupil upon proper request, and that the laws of Georgia do not require, but do not prohibit, instruction regarding the Bible, provided the instruction avoids sectarianism.

EDUCATION-School Bonds (Unofficial) Where a local school district voted bonds prior to the .adoption of the 1945 Constitution, the bonds may be validated thereafter and a bond tax levied.

Hon. W. W. Dykes County Attorney Americus, Georgia

SeptE:mber 27, 1945

Your letter of September 13th received. You refer to a situation that exists in Chambliss School District and request that I advise regarding the duty of thE: county commissioners of your county to levy tax for retirement of bonded indebtedness. You state in your letter that you had read the opinion that I rendered for Dr. Collins dated August 30th dealing with the status of school districts. You state that prior to the adoption of the new Constitution, Chambliss School District was definitely defined and marked out by the County Board of Education in thE: manner provided for in the School Act of 1919. You also state that the school building of the District burned, and that the District needed a new building, and had called an election for a bond issue which was held July 31, 1945, and that the issue was decided overwhelmingly in favor of bonds.
Under the Constitution of 1877 and under the School Act of 1919, Chambliss School District was authorized to issue bonds to build schoolhouses provided said District levied a tax for maintenance purposes or further provided that the county of SumtE:r levied a maintenance tax.
In my opinion dated August 30th, I reached the conclusion that the Constitution of 1945 did not interfere with the school districts as set up under the School Act of 1919. The Constitution of 1945 does not deal with any of the powers of the county school boards. Under Section 32-1101 of the Code the county board of education of each county was required to lay off the county into school districts. The School Act of 1919 provided the procedure for the selection of trustees who are officers of the local political

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subdivision known as school districts. The officE: of members of the boards of education existed as a statutory office by virtue of an Act of the General Assembly (Ga. L. 1919, p. 320-Code Sections 32-901 and 32-902), and under the 1919 Act every county composed one school district, and the affairs, control and management of the county district was confided to the county boards of education. The county boards of education were selected by the Grand Jury from the citizens of the county for a term of four years. The board consisted of five members. The statutory county board of education provided for in the Act of 1919 was incorporated into the Constitution of 1877 as amended by the adoption by the people of Amendment No. 1 in an election hE:ld on August 7th and proclaimed by the Governor on August 13, 1945.
The new Constitution lengthened the term of the members of the county board of education from four to five years and provides that the Grand Jury shall on making appointment arrange the appointments for staggered terms. On August 29th, I rendered an official opinion for Dr. Collins in which I reachE:d the conclusion that the preseRt members of the boards selected under the 1919 Act remain in office until the expiration of their term and that it was the duty of the Grand Jury in filling such places at the expiration of the terms of the members to arrange so that in the future a vacancy would occur each year as provided for in the Constitution of 1945.
The duty required of members of the county boards of education was not dealt with by the Constitution of 1945 and the duty to divide the county into school districts is riot in conflict with the Constitution. Therefore, I am of the opinion that the local school districts remain a political entity and are authorized to perform the governmental functions given them by statute which are not inconsistent with the new Constitution. The main inconsistency that I find to exist is in that Section of the School Act (Section 32-1108 of the Code) which authorizes the local school district to levy a maintenance tax for school purposes where the citizens of that district have voted to do so. This provision is in conflict with the Constitution of 1945. The Constitution of 1877, Paragraph 1, Section 4, Article 8 (Code Section 2-6901) authorized the lE:vy of the maintenance tax, and this provision of the Constitution has been abrogated by thb new Constitution. Paragraph 1, Section 4 of Article 7 of the Constitution of 1945, provides that the General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose except (naming several) among which it provides:
"(3) For educational purposes upon property located outside of independent school systems, as provided in Article 8 of the constitution."
Paragraph 1, SE:ction 12 of Article 8 of the Constitution of 1945, provides that the fiscal authorities of the several counties which levy a tax for county purposes shall levy a tax for the support and maintenance of education, not less than five mills nor greater than fifteen mills upon the property of a county located outside independent school systems, as may be recommended by the county board of education. The Constitution of 1945 does not authorize the levy of a maintenance tax for local school districts.
The political subdivisions of the State created as local school districts, by virtuE: of the School Act of 1919 (Code Section 32-1113) were given the power to create bonded indebtedness for the purpose of building and equip-

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ping schoolhouses in the district, where the citizens of the school district voted the indebtedness upon themselves in the manner provided for by the Constitution and enabling statutes. The local district was given the right to levy a tax for the purpose of creating a sinking fund to be. used for the retirement of the principal and interest of the bonds by Paragraph 1, Section 7, Article 7 of the Constitution of 1877. This provision is codified as Section 2-5501. Thus we sf:e that the authority given by the Constitution authorizing school districts to levy maintenance and bond tax was separate. See Stapleton, et al. v. Martin, 164 Ga. 336.
The authority of a local district to levy bond tax is retained in the Constitution of 1945. See Paragraph 1, Section 7, Article 7 of the new Constitution.
Since the election for the bonds mentioned in your letter was held on July 31, 1945, prior to the adoption of the new Constitution, I am of the opinion that such bonds could legally bf: validated under the enabling act codified in Sections 87-201, 87-202 and 87-203. There would be a question as to whether or not an election could be held since the adoption of the new Constitution so as to authorize the validation of bonds because sections of the Code referred to would be in conflict with the present Constitution, in that the present Constitution changes the number of votes required to validate bonds and thf: present enabling act follows the old Constitution rather than the 1945 Constitution. See Hudson v. The Mayor, etc., of Marietta, 64 Ga. 287.
You will note from my opinion of August 30th that I reached the conclusion that the trustees of the local districts were still officers under the law, and if I am right in this conclusion the proper papers in the procedure to validate bonds could be legally served upon the trustees, and they could legally file proper answers in response to the proceedings.
I am of the opinion that after the bonds have been properly validated by an ordH of the court that the trustees of the local districts are empowered to make recommendation to the county fiscal authorities for the levy of a tax to create a fund to be used for the payment of the principal and interest of the bonds. This power is granted by' Section 32-1402 of the Code which does not, in my opinion, conflict with any portion of the Constitution of 1945.
I am of the further opinion that should the court issue its judgment validating the. bonds of Chambliss School District, and after the entrance of such a judgment or decrf:e, the trustees make recommendation to the county authorities as provided for in Section 32-1402 of the Code, it would be the duty of the county authorities to make the levy as recommended.

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EDUCATION-School Bonds A county board of education may use surplus funds arising from a bond tax levy, after the bonds are retired, for any other legitimate obligation of the school system.
April 16, 1946 Hon. B. E. Thrasher, Jr. Stat~ Auditor
Your letter of April lOth received. You request an official opmwn as to my views as to the disposition to be made of surplus funds held by county boards of education after the payment of all bonds for" which the fund was raised.
Facts in the file sent me show that several school districts have paid in full all the principal and interest due on bonds issued by the district, and that the trustees had on hand after such payment surplus sums to be turned over to the county boards of education as provided for in the Act approved February 1, 1946, known as the Act to amend Chapter 32-9 relating to school affairs.
All such bonds were validated under authority of the School Act of 1919, Section 32-1401 of thE: Code of 1933. This Act, Section 32-1402 of the Code provided among other things as follows:
"For the purpose of taking care of and paying the principal and interest of these bonds, the board of trustees shall recommend, and the board of county commissioners or the ordinary, as the case may be, shall levy upon the property subject to taxation in the district, such tax as may be necessary to provide a sinking fund for the retirement of said bonds and for paying thE: principal thereof and the interest thereon; this to be in addition to the general tax for the maintenance of the schools of said territory."
Section 32-1402 of the Code was repealed by the School Act approved February 1, 1946 and there was inserted in lieu thereof the following:
"In any local or consolidated school district in any county where there is an outstanding bonded ind~btedness created for the purpose of building school houses, or equipping school houses, the County Board of Education shall, upon the effective date of this Act, become the trustee of all funds which shall have been or may be collected from taxes or received from other sources, for the purpose of retiring the principal and interest on said bonds, or for creating a sinking fund for said purpose. The County Board of Education is charged with tht: duty of disbursing said funds to the bond holders in accordance with the terms under which the bonds were issued, and the duty of constructing any buildings, acquiring any building sites, or any equipment for which the bonds were issued. The County Board of Education shall also annually, within the time required by law, or the terms of said bond issue, recommend to the fiscal authorities of the county, the levy upon the property subject to taxation in the district originally voting said bonds, such tax as may be necessary to provide a sinking fund for the retirement of said bonds and for paying the principal thereof and the interest thHeon, in accordance with the terms under which said bonds were issued; this to be in addition to the general tax for the maintenance of the schools of said districts."
The Constitution of 1877 provided that when any political division of

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the State incurred bonded indebtedn(:ss that such political division at the time of incurring the same should provide for the assessment and collection of an annual tax sufficient in amount to pay the principal and interest of the debt within thirty years. (Code Section 2-5502). The same provision is in the Constitution of 1945 in Paragraph 2, Section 7, Article 7.
Paragraph 1, Section 8, Article 7, Constitution of 1945 provides as follows:
"All amounts collected from any source for the purpose of paying the principal and interest of any bonded indebtedness of any county, municipality or subdivision and to provide for the retirement of such bonded indebtedness, above the amount needed to pay the principal and interest on such bonded indebtedness due in the year of such collection, shall be placed in a sinking fund to be held and used to pay off the principal and interest of such bonded indebtedness thereafter maturing.
"The funds in such sinking fund shall be kept separate and apart from all other moneys of such county, municipality or subdivision, and shall be used for no purpose other than that above stated. The moneys in such sinking fund may be invested and reinvested by the governing authorities of such county, municipality or subdivision or by such other authority as has been created to hold and manage such sinking fund, in the bonds of such county, municipality or subdivision, and in bonds or obligations of the State of Georgia, of the counties and cities thereof and of the government of the United States, of subsidiary corporations of the Federal Government fully guaranteed by such government, and no other. Any person or persons violating the above provisions, shall be guilty of malpractice in office and shall also be guilty of misdemeanor, and shall be punished when convicted, as prescribed by law for the punishment of misdemeanors, until the General Assembly shall make other provisions for the violation of the terms of this paragraph."
By the Act approved February 1, 1946, the county boards of education take th(: place of and exercise the authority heretofore vested in local districts where there are outstanding bonds. The county board of education is the corporate authority through which the counties act in educational matters. Board of Education v. Hunt, 29 Ga. App. 655. Smith v. Board of Education, 153 Ga. 758. Ayers v. Board of Education, 56 Ga. App. 146.
Taxes levied on the recommendation of the county board of education are levied by the county fiscal authorities and are county taxes. Board of Education v. Southern Michigan National Bank, 184 Ga. 641. Burke v. Wheeler County, 54 Ga. App. 81. Palmer v. Burke County, 180 Ga. 478.
The tax levied by the county authorities for the purpose of paying the principal and interest on bonds, and for the creation of a sinking fund to pay principal and interest on bonds is a tax for a specific purpose. Section 92-3708 of the Code provides that taxes raised for educational purposes, the support of the poor, or any specific purpose, shall be used for such purposes respectively, and none other.
My construction of the Constitutional and statutory provisions hereinbefore pointed out is that it was the intention of the people in the adoption of the Constitution, and the General Assembly in the adoption of legislation, to provide that funds raised by taxation to pay the principal and interest on

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bonds should be set aside by the officials of the political division and kept separate from other funds to be used for the sole purpose of paying the indebtedness and none other until the debts against same had been fully liquidated. I do not believe that the Constitution or statutes contemplate that after the payment of the debts against such specific fund that the fund could not be legally used for other legitimate purposes for which the authorities could levy a tax.
I am of the opinion that the specific fund, after all demands and indebtedness charges against it have been paid, become a general fund in the hands of the authorities to be used for legal purposes. Being such a general fund I am of the opinion that the rule laid down by the Supreme Court in the case of Butts County v. Jackson Banking Company, 136 Ga. 719 (4), would apply. The court ruled as follows:
"When, out of a fund raised by taxation for a specific purpose, all demands and indebtedness properly chargeable against that particular fund have been paid, or deducted, and there remains a surplus from such fund in the hands of the treasurer, the same then becomes a general fund, which may be lawfully applied to the payment of balances due on warrants drawn against other specific funds not sufficient for their payment, or to any other legitimate liability against the county."
The rule was followed by the court in the case of Spain v. Hall County, 175 Ga. 601 (6).
While the funds raised by taxation for maintenance of schools and to pay bonded indebtedness for building school houses are county funds, the General Assembly saw fit to provide that all such funds should be turned over to the authority of the county administering the educational system for the county.
The specific fund levied to pay principal and interest of bonded indebtedness cannot be used for any other purpose so long as there remains unpaid any part of the principal or interest of such debt. After the authority of the county has paid in full all of the principal and interest on a bonded indebtedness, such authority may use any surplus fund, arising from the levy of a tax to rE:tire bonded indebtedness, for maintenance purposes and for any other legitimate obligation of the school system. I do not think it necessary for such authority to obtain any court order authorizing such use. In fact, I cannot find any statutory authority authorizing any court to grant such an order. If the court was authorized to grant any order it could only direct that the fund be spent in some legitimate manner.
EDUCATION-School Bonds Funds raised by bond tax levy may not be used to pay exchange or agent's expenses for handling collections of bonds.
April 16, 1946 Hon. B. E. Thrasher, Jr. State Auditor
In your letter of April lOth you request that I advise whether or not funds raised by taxation to pay school bonds, or to create a sinking fund to pay off bonds, can be used for the purpose of paying exchange or expenses to agents for the handling of collections of bonds.

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Paragraph 1, Section 8, Article 7 of the Constitution of 1945 provides in substance that all amounts collected for the purpose of paying the principal and interest of bonded indebtedness and to provide for the retirement of such indebtedness, above the amount needed to pay the principal and interest due in the year of collection shall be placed in a sinking fund to be held and used to pay off the principal and interest of such bonded indebtedne<s thereafter maturing. It also provides that such sinking fund shall be kept separate from all other monies of the political division and shall be used for no purpose other than the payment of the principal and interest of the bonded indebtedness.
The Constitution declares that any person violating the provJswns of the same shall be guilty of malpractice in office and shall be guilty of misdemeanor and punished as such.
UnC:er the terms of this provision of the Constitution of 1945 I do not think that any part of said fund can be used for any purpose other than the payment of the principal and interest of the bonded ind:btedness until the full debt created by the bond issue has been retired. The payment of any costs or exr emes in handling and paying of the bonds should be paid from the mairtenm.ce or other funds of the political division paying the bonded indebtedness.

EDUCATIO -School Bonds (Unofficial) A cou> y as a school district, excluding independent systems, may issuf: bondf up to 7'/o of the asseEsed value of the property, in addition to the '. 'I'< bend i;;sue by the County for county purposes.*'

Dr. l\L D Collins State Superintendent of Schools

April 22, 1946

Your letter of April 13th, enclos'ng a letter from Mr. H. S. Shearouse, State School Supervisor, received. Mr. Shearouse requests an opinion on the question of whether or not the county board of :ducation can float a bond issee fer ~even per cent. of the assessed property on the county digest in addition to a like bond issue by the county commissioners for county purposes.
The EcLool Act of 1919, Cede Section 32-901, provided: 'Each and every county shall compose one school district, and shall be confided to the control and management of a county board of education." Th:s por ion of the 1919 School Act was incorporated into the Constitution of 1945 in the following language: 'Each county, exclusive of any ind:pendent school system now in existence in the county, shall comprise one school district and shall be confined to the control and management of the county board of education." Ec e Paragraph 1, Section 5, Article 8 of the Constitution of ~ 945. In Burke v. Wheeler County, 54 Ga. App. 81, 86 the court states: "The county board of education is merely an agency through which the county ac.s in school matters. It is not an independent organization or a

*So held in Nelms v. Stephens County School Dist. et al, 201 Ga. 27 4, decided Sept, 6, 1946.

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political division. It is not a body corporate with authority to sue and to be sued in the ordinary sense."
There an: other decisions holding to the same effect. See Board of Education of Houston County v. Hunt, 29 Ga. App. 665. Smith, et al. commissioners v. Board of Education of Washington County, 153 Ga. 758. Ayers v. Board of Education of Hart County, 56 Ga. App. 146. Ayers v. Hartford Accident and Indemnity Company, 106 F. 2d. 958.
Tax for educational purposes is levied by the county fiscal authorities on recommendation of the county board of education. The Supreme Court has held that even though a tax collector is required to pay tlie school tax to the county board of equcation, it is within the:: province of the county authorities to issue executions and to collect any such tax. See Palmer v. Burke Coun~y, 180 Ga. 478 (3).
I gather from the rulings of the court made in the authorities hereinbefore cited, that the CO!Jnty board of education acts as agent for the county in educational matters. If there is no independent political subdivision of the county as a school district, the bondE:d indebtedness, together with other bonded indebtedness issued by the county commissioners would be restricted to the seven per cE:nt. limit, which the county could create as a bonded indebtedness under the Constitution of 1945.
The decision of the court to which I have referred dealt with the officers handling the school matters rather than with the political set up. I am strongly inclii:ed to the view that the county, E:xcluding any independent school system, is a separate subdivision of the State from that of the county itself. As a separate subdivision, the subdivision would be authorized to create an indebtedness up to seven per cent. of the assessed tax values of the property of the:: district, in addition to any bonded indebtedness created by the county commissioners for county purposes.
I am inclined to the view that there are two separate subdivisions, the school district of thE: county and the county itself, because of the specific language of the Constitution which says that each county shall comprise one school district, and because of the decision rendered by the Court of Appeals in Ogletree v. Spalding County School District, 41 Ga. App. 276, where the Court of Appeals held that proceedings to validate bonds were properly brought against "Spalding County School District". The Court of Appeals in a companion case Spalding County v. Walker, 41 Ga. App. 229, hE:ld that proceedings to validate bonds were improperly brought against Spalding County.
The identical question which Mr. Shearouse has propounded was presented to the court in the Walker case; however, the Court of Appeals did not p2ss upon the question. From these two decisions of the court it would seem that it \Yas immaterial in a case to validate bonds for the court to consider the indebtednE:ss of a county over a bond issue for county purposes. I ga,her that the bonds issued by the district were validated in the proceedings brought against the district.
In the Act approved February 1, 1946, Section 23 repealed Code Section 32-1403 which authorized county-wide school districts to validate bonds. Section 23 of the 1946 Act provides that the county board of education shall proceed with bond issues in the same manner as that prescribed for the valida-

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tion of county bonds. It refers to bonds issued by the county boards of educa.. tion and does not refer to bonds issued by the county school districts. The full import of the rights and powers of the district to issue bonds is not clear, but is inferred from the language of this Section of the Act.
This is a question that will finally be determined by the courts of the State. However, it is my opinion that a county school district may issue up to seven per cent. of the ass:ssed tax value of the property of the county, excluding territory in independent systems, and that the county can also issue bonds for a like seven per cent. of its assessed tax value.
EDUCATION-S::hool Bonds ( 1) The county board of education is the proper authority to call an election for the issuance of school bonds and the election and tax levy is county-wide, excluding independent systems located therein. (2) The county board of education may not convey property to local school district trustees for the purpose of creating a debt on the property to be retired from revenue, the property to be reconveyed after retirement of the debt.
November 12, 1946 Hon. Ellis Arnall Governor of Georgia
Your letter of November 7th, enclosing a lett:r from Hon. J. Scott Davis relating to bond issues for the purpose of securing money to build schoolhouses, received. Mr. Davis wanted to know whether or not, under the 1945 Constitution and the 1946 School Act, the bond issue should be county-wide or by school districts. He also requested an opinion on the question of whether or not a county board of education could convey school property to trustees under an agreement whereby the trustees would erect school buildings, charge fees to retire the indebtedness for the construction of the building, and when debt was paid to reconvey the property to the county board of education.
The Supreme Court in the case of Wheeler v. Board of Trustees of Fargo Consolidated School District, 200 Ga. 323, held that the Constitution of 1945 continued in existence local school districts and local school trustees and did n.ot change or alter the statutory law with reference to local school boards. See also Bird v. Walker County Board of Education, 200 Ga. 337.
The School Act approved February 1, 1946, Act No. 634, amended the school law of 1919. This Act had the effect of abolishing all local school districts, and of providing that each county in the State, exclusive of any independent school system now in existence, shall compose one school district and shall be confided to the control and management of a county board of education. See Section 8 of said Act.
In a recent decision in the case of Nelms v. Stephens County S.;:hool District, 39 S. E. 2d 651, the Supreme Court held that Act No. 634 had the effect of merging all local school districts into a county school district. The court determined that under Act No. 634 the county board of education was the proper official to call an election for the issuance of bonds to build and equip schoolhouses. Under Act No. 634 and the decision of the Supreme Court

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in the Nelms case the election would be voted on by the voters of the entire county excluding any independent system located therein, and the county board of education would levy a tax on all property in the county outside of any independent system for the purpose of paying the interest and principal of bonds issued. This tax to retire bonds would be in addition to the maintenance levy of five to fifteen mills as provided for in the Constitution.
Mr. Davis in his second question wanted to know whether or not the county board of education had the authority to deed school property to the trustees of a school so that the trustees could borrow money on the school property and build an auditorium, or buy additional land imd build an athletic field with grandstand.
Under Section 32-909 of the Code as amended the county boards of education are invested with the title, care and custody of all schoolhouses or other property with power to control the same in such manner as they think will best serve the interest of the common schools; and when, in the opinion of the board, any schoolhousE: site had become unnecessary or inconvenient, they may sell the same in the name of the county board of education; conveyance of the property to be executed by the President or Secretary of the board, according to the order of the board. This Section also gives the county board power to purchase, lease, or rent school sites; build, repair or rent schoolhouses, and equipment. The Act of 1946 in Section 23 provides in substance that after the passage of the Act when any county board of education shall deem it to the best interest of education in the county to incur any bonded debt for building, equipping or purchasing sites for the building and equipping of schoolhouses, pursuant to Article 7, Section 7, Paragraph 1 and 2 of the Constitution of 1877 as amended, that the election for such bonds shall be called and held in the manner prescribed by Chapter 87-2 of the Code of 1933, and that the bonds shall be validated in the manner provided for in Chapter 87-3 of the Code of Georgia of 1933 as amended.
Section 32-1104 of the Code relating to the election of local school district trustees was repealed by Act No. 634. Section 10 of the Act gave county boards of education the right to appoint school trustees for each school in the county. Under Section 11 of the Act the duties of such trustees are declared to be advisory in nature. They serve without compensation and make recommendations to the county board of education. Under the Constitution and said Act the management of the affairs of the schools is lodged in the county board of education.
Giving consideration to Act No. 634, the Constitution and the decisions of the Supreme Court hereinbefore referred to, I am of the opinion that a county board of education would not have the right to convey school property to trustees for the purpose of enabling the trustees to create against the property a debt to be retired from revenues derived by the trustees for the use of the school property, and with the intent after such debt had been retired to reconvey the same to the county board of education. I think that the county board of education are the officers required to act for the county school system.
Under the Revenue Certificate Law of 1937 (Ga. L. 1937, pp. 761-774, as amended Ga. L. 1939, pp. 362-366) it may be that the county board of edu-

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cation could erect athletic fields, grandstands and stadiums with revenue bonds to be retired solely from the usage of same. The term "municipality" defined in said Act as amended by the 1939 Act includes any school, district, county, city or town of the State. Under the Act of 1937 as amended revenue certificates or bonds may be issued to build dormitories, laboratories, libraries, and other related facilities, parks, golf links and fairways, tennis courts, swimming pools, playgrouds, athletic fields, grandstands and stadiums, and buildings to be used for various types of sports, including baseball and football. However, before a county board of education should undertake to create a debt under the Revenue Certificate Law, the county board of education should advise with the county attorneys and be governed according to his advice and instruction. I do not know of any decision of our courts which relates to the right of a county board of education to create a debt under the Revenue Certificate law for such purposes as l\lr. Davis mentioned. I have referred to the Revenue Certificate Law because it is my unofficial view that it is possible for a county board of education to issue revenue certificates as therein provided for the specific purposes named.
EDUCATION-School Bonds (Unofficial) A county board of education may use surplus county school funds to retire matured bonds issued by a local school district prior to the 1945 Constitution and Culpepper Act of 1946, for the erection of schoolhouses, title to which has vested in the county board of education.
May 19, 194'; Hon. Claude Purcell Assistant, Division of Administration
Your letter of May 15th received. You state that a county school superintendent wished to know whether or not it would be legal to spend any pa1t of surplus funds on hand June 30, 1947 to retire bonds which are due and outstanding by school districts created under the Act of 1919 and prior to the adoption of the Constitution of 1945, and the passage of the Culpepper Act in 1946.
Under the School Act of 1919 each county constituted one school district. Section 32-901, Code of 1933.
Under the Constitution of 1945 this provision of the School Act was adopted as a part of the Constitution. Paragraph 1, Section 5, Article 8 of the Constitution of 1945. Under the School Act of 1919 each county wa>< divided into subdistricts, and each subdistrict of the county constituted a political subdivision separate from that of the county. The Culpepper Act, (Ga. L. 1946, pp. 206-218), had the legal effect of abolishing all such school districts and of creating the county into one school district. However, under the Act the school districts under bonded indebtedness for schoolhouses nmaired a political subdivis:on for the purpose of levying a school bond tax to retire the bonded indebtedness, such tax to be levied upon the property locai ed in the school district.
The School Act of 1946 amended Section 92-909 of the Code by striking
from r e 8 thereof the words '"belonging to the subdistricts now or hereafter

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defin(;d" and by striking the words "either by labor on the part of the citizens of the subdistrict, or by tax on their property" as th(;y appear in lines 26 and 27 of said Section, and by inserting in lieu thereof the words "by a tax on all property located in the county and outside the territorial limits of any inde-. pendent school district." A bonded indebtedness created by a subdistrict is not the debt of a county board of education but remains the debt of the political subdivision known as the school district. The county board of education would not have the right or power to levy special bond tax on all of the prop(;rty of the county outside of independent school. systems for the purpose of providing a sinking fund to pay the principal and interest of a debt created by one of the districts. To undertake to do so would have the effect of the county assuming the indebtedness of another political subdivision. This, in my opinion, cannot be legally done. The question then arises whether or not, since the county can not assume the indebtedness of the district, the county can use its surplus funds to pay the indebtedness of the district.
As stated above the Constitution of 1945 makes the county on(; school district and places the control and management cf the district under a county board of education. Under Paragraph 1, Section 12, Article 8 the counties are authorized to levy a maintenance tax of fifteen mills on all property located in the county and outside of independent school districts.
Under Section 32-909 of the Code county boards of education have the power to purchase, l(;ase, or rent school sites; build, repair or rent schoolhouses and purchase furniture and other necessary equipment. The boards are invested with the title, care and custody of all schoolhouses or other property. The board may provide school buildings, either by labor on the part of the citizens of the county or by a tax on all property located in the county and outside the territorial limits of any independent school district. It is my opinion that the county board of education could legally levy a tax to build, purchas(; or acquire school buildings.
Under the decisions of the Supreme Court in Butts County, et al. v. Jackson Banking Company, et al., 136 Ga. 719 (2) and Spain, et al. v. Hall County, et al., 175 Ga. 601 (6), a county may use any surplus fund raised by taxation for a specific purpose after all demands of the specific purpose have been met, on the theory that such surplus becomes a g(;neral fund and can be legally applied to any legitimate liability against the county.
Due to the fact that the indebtedness of a school district constitutes an indeb:edness of the political subdivision different from that of a county, some question arises as to whether or not the bonded indebtedness would be a legiti'mate liability against the county. I am unable to find any court decision on this point. While the matter is debatable, I am inclined to the view that since th(; title to the school building of the district under Section 32-909 is invested in the county board of education, the county board of education would have the right to use surplus funds to protect the building against indebtedness arising because of the construction of the building.
I desire to call your attention, however, to Section 32-614 of the Cumulative Pocket Part of the Annotated Code, (Ga. L. 1937, pp. 882-886), being a part of the Equalization of Educational Opportunities Act. This Section specifically outlines the things for which State money may be used. In short,

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the money may be used to pay teachers, to pay the salaries of county school superintendents, to pay local units of administration for the purpose of meeting local administrative expenses, the cost of operating school plants, and to pay the administrative expenses of the State Department of Education. Governor Arnall, while Attorney General, on July 25, 1939, Opinions of the Attorney General, 1939-41, pp. 97, 98, ruled that no part of the State fund could be used for the purpose of building schoolhouses. Adhering to this opinion by Governor Arnall I am of the opinion that no part of the State fund could be used for the purpose of retiring the bonded indebtedness of the school district, even though there might be in the hands of the county board of education a surplus after paying the obligations of the current year.
EDUCATION-School Bonds The act creating a DeKalb County Bond Commission to control the expenditure of funds raised by the issuance of bonds of the DeKalb County School District is invalid as a special act in conflict with a general law on the same subject.
August 19, 1947 Hon. B. E. Thrasher, Jr. State Auditor
Your letter of August 8th received. You refer to the Act approved February 25, 1947, (Ga. L. 1947, pp. 290-292), creating a Bond Commission for the DeKalb County schools and request my opinion as to the legal status of the Bond Commission of DeKalb County in relation to the activities of the Constitutional County Board of Education.
The Act creates a Commission composed of eleven members, naming the members. The Act further provides that it shall be the duty of the Bond Commission, and that it is empowered to supervise and control the expenditure of all monies raised by the issuance and the sale of all direct obligation bonds of DeKalb County School District. It gives the Commission power to approve the execution of any and all contracts and to employ architects and engineers, approve their compensation, and to determine the buildings to be constructed and repaired and the location of buildings, and to do any and all acts for the expenditure of said funds for the best interest of the school district.
In Section 5 it is provided that the Commission shall exercise the powers authorized by the Act by resolution, which resolution shall have binding effect upon the Superintendent of Schools of said county and other officers of said county who may be affected thereby.
You take the position that the Constitutional County Board of Education is the legal authority to receive and spend funds for educational purposes, and that the county board does not have the power to delegate its duties and responsibilities for the expenditure of public funds. I do not think that the question presented involves any delegation of public duties and powers by the county board to the Bond Commission, because if there were any delegation of the powers, the same were delegated by the General Assembly by the passage of the Act, and not by any act of the board in delegating its authority.

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The Act creating the DeKalb County School District Bond Commission is by its own terms applicable to only DeKalb County, and does not permit application to any other counties in the State. Therefore, it is a special or local law. See Gibson v. Hood, 185 Ga. 426.
Paragraph 1, Section 5, Article 8 of the Constitution of 1945 provides for a county board of education and creates ~ach county into a school district and confines the control and management of the school district to a county board of education.
Section 20 of the Act approved February 1, 1946, (Ga. L. 1946, pp. 206216), provides that the county board of education of each" county shall succeed to and be vested with all the rights, powers and duties formerly vested in the local or consolidated school district trustee:s with respect to the building and equipping of schoolhouses in the county, preparing tax digest and performing other duties.
Section 21 of the Act while dealing with bond issues, validated by districts which were: abolished by the Act, provides in part as follows:
"The county board of education is charged with the duty of disbursing said funds to the bondholders in accordance with the terms under which the bonds were issued, and the duty of constructing any buildings, acquiring any building sites, or any equipment for which the bonds were issued."
Section 23 of the Act provides in substance that after the passage of the Act when any county board of education should deem it to the best interest of education in the county to incur any bonded debt for building or equipping schoolhouses, that the bonds should be: validated as provided by the Constitution and in the manner set forth in Chapter 87-2 and 87-3 of the Code of 1933.
It will, therefore, be seen from a reading of the constitutional provisions and the various statutes relating to school affairs that general laws of uniform operation throughout the State deal with the general subject which is dealt with in the Bond Commission Act. Under the general laws the duties relating to bond funds and the: building and constructing of schoolhouses are lodged in the county boards of education.
Paragraph 1, Section 4, Article 1 of the Constitution of 1945 provides as follows:
"Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law. No general law affecting private: rights, shall be varied in any particular case, by special legislation, except with the free consent, in writing, of all persons to be affected thereby; and no person under legal disability to contract, is capable of such consent."
Paragraph 2 of said Section and Article provides that legislative acts in violation of the: Constitution are void and the judiciary shall so declare them. In the case of Hood v. Burson, et al., 194 Ga. 30, the Supreme Court held a local act, or special act, creating a board of health for Carroll County to be void where the Act assigned to the county board the same duties provided for under the Ellis Health Law, a general law. In the case of Gibson, et al. v. Hood, et al., 185 Ga. 426, the Supreme Court held a special act which provided for the appointment of county board of education members by the judge of the: superior court violated the Constitution because the general law provided that

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they shall be appointed by the grand jury of the county. Many other citations could be furnished to the effect that special acts dealing with the subject already dealt with by a general law is void as violating the provision of the Constitution. A number of such citations are cited in Hood v. Burson, et a!., supra.
As a general rule such questions as dealt with in your letter would be classified as local matters over which the Attorney General would have no authority and upon which he could not give an official opinion. However, due to the fact that under Section 40-1812 of the Code the State Auditor is required to audit school funds, I deem it within the province of the Attorney General to pass upon the validity of the DeKalb Bond Commission Act.
Therefore, it is my opinion that the special DeKalb Bond Commission Act, approved March 25, 1947, (Ga. L. 1947, pp. 290-292), is void and must yield to the general law which requires the county board of education to handle and administer school funds, and to build and equip schoolhouses.

EDUCATION-School Bonds (Unofficial) (1) Where county school district bonds were validated Aug. 22, 1947, a bond tax may be levied for that year. (2) It is the duty of the county board of education to recommend the amount of school bond tax to be levied and to prepare the tax digest. (3) The constitutional exemption of personalty is applicable to school bond tax levy but the homestead exemption is not.

Hon. Frank Hutchinson Tax Commissioner, Troup County LaGrange, Georgia

September 10, 1947

Your letter of September 6th received. You state that the county board of E:ducation floated a bond issue and the bonds were validated August 22, 1947 and request that you be advised whether or not a tax could be levied for the present year and if the levy would apply to real property exempted under the home exemption statutes, and also whose duty it would be to prepare the tax digest of the property on which this tax can be levied.

I am of the opinion that under the decisions rendered by the Supreme Court in the cases of Page v. Sansom, 184 Ga. 623, Wheeler v. Board of Trustees, 200 Ga. 323, and Cairo Banking Company v. Ponder, 131 Ga. 798, the tax can be levied for the present year of 1947. It is my understanding that the county commissioners of Troup County have not completed their levy for the present year. We understand, of course, that before the tax can be levied that it would be necessary for the county board of education to recommend to the county board of commissioners the amount of tax to be levied to pay the bonds and for the board of county commissioners to levy the tax. It would be the duty of the county board of education to make up a digest of the taxable property in the same manner that the trustees of school districts formerly made up the digest.
Under decisions of the Supreme Court I am of the opinion that the levy would not apply to personal property exempted according to the Constitution

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and laws of this State. I do think that the real estate set aside as home exemption would be subject to the tax levied to pay the interest and retire the bonds. See Campbell v. Redbud Consolidated School District, 186 Ga. 541.
EDUCATION-School Bonds (Unofficial) The county board of education may call an election for the issuance of bonds to build and equip schoolhouses without a petition by one-fourth o.f the registered voters of the county.
October 28, 1947 Ron. A. B. Conger Attorney at Law Bainbridge, Georgia
In your letter of October 25th you request that W: advise whether or not, in our opinion, it is necessary to obtain one-fourth of the reg!<etered voters of the county in order for a county board of education to ca\1 an election for the issuance of bonds to build and equip schoolhouses.
You refer to Section 32-1401 of the Code which required truste.;s to call bond elections when one-fourth of the registered qualified voters of the school district petitioned the trustees to call an election. This section was repealed in its entirety in 1946, (Ga. L. 1946, pp. 206, 216). However, that section dealt only with bond issue by local school district crf:ated under the 1919 school act.
Section 32-1403 of the Code of 1933 dealt with bond issues for school buildings when the same were to be issued on a county-wide basis. That section also required one-fourth of the registered qualified voters to file with the board of education of the county a petition asking for an election to detEcrmine whether or not bonds should be issued. Section 23 of the 1946 Act, supra, repealed Section 32-1403 of the Code in its entirety and enacted in lieu thereof a new section which provides in substance that whenever tJ1e county board of education df:ems it to the best interest of education to incur any bonded indebtedness for building schoolhouses that such bonded indebtedness shall be incurred pursuant to Article 7, Section 7, paragraphs 1 and 2 of the Constitution of 1877 as amended in 1945 and that the election required shall be called and held in the manner prescribed by Chapter 87-2 of the Code.
The Supreme Court h:ld that the county board of education was the proper party to issue bonds under the Constitution of 1945 and the Act of 1946 and that the election should be held as prescribed by Chapter 87-2 of the Code of 1933. See Nelms v. Stephens Coun~y School District, 201 Ga. 274.
Section 87-201 of the Code outlines the procedure for calling an election to determine whethtr or not any bonded debt should be incurred as provided for in the Constitution.
I am, therefore, of the opinion that the county board of education if it sees fit may call an election to determine whether or not a bonded indebtedness may be incurred by the county to build schoolhouses even though there is not petition filed by the people asking for same.

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EDUCATION-School Buildings (Unofficial) A county, without issuing bonds, may levy a special tax for the purpose of building schoolhouses, in addition to the 15 mills maintenance tax, if sufficiE:nt funds for the purpose will be provided during the current year.*
March 22, 1946 Dr. M. D. Collins State Superintendent of Schools
Your letter of March 13, enclosing a letter from Honorable S. C. Harper, County Superintendent of Schools of Wayne County, is received. Mr. Harper seeks, through you, an official opinion on thE: question of whether or not a county can levy a tax for the purpose of building school houses, in addition to a maintenance tax as provided by the Constitution.
The question is purely onE: of local concern involving the counties of the State. However, since Mr. Harper states that he has conferred with the County Attorney, and the County Attorney has requested that I give you an official opinion, I will give you my view as to the authority of a county to levy such a tax.
Section 32-909 of the Code of 1933 was amended by the School Act approved February 1, 1946. The 1946 Act struck the words, "either by labor on the part of the citizens of the sub-districts, or by a tax on their property", as they appear in lines 26 and 27 of this Section, and substituted in lieu thereof the following language, "by a tax on all property located in the county and outside the territorial limits of any independent school district."
The Section as thus amended provides that the Board of Education may provide for school houses by a tax on all property located in a county and outside the territorial limits of any idependent school district. It is, therefore, necessary to determine whE:ther or not the Constitution of 1945 authorizes a special tax to provide school houses.
Paragraph 1, Section 5, Article 8 of the Constitution and the School Act of 1919, c;nstitutes each county as one school district and confines its control and management to a County Board of Education. The County Board of Education is merely an agency through which a county acts in school matters. See Burke v. Wheeler County, 54 Ga. App. 81; Board of Education v. Hunt, 29 Ga. App. 665; Sm~~h, et al. v. Board of Education, 153 Ga. 758; Ayers v. Board of Education, 56 Ga. App. 146; Ayers v. Hartford Accident & Indemnity Co., 106 F. 2d, 958.
Paragraph 1, Section 5, Article 8 of the Constitution of 1945 provides i.t part as follows:
"Authority is granted to counties to establish and maintain public schools within thE:ir limits."
It is to be noted under this constitutional provision that counties are granted the power to establish, and also the power to support and maintain
*On April 15, 1948, the State Supreme Court held in Board of Commissioners of Roads and Revenues of Twiggs County et al. v. Bond et al. No. 16163, that where a county has levied a tax of fifteen mills for the support and maintenance of the public schools it cannot, in addition thereto, levy another tax of fifteen mills to pay for the building and repairing uf public school buildings.

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schools. The word "establish" would, in my opm10n, include the right to purchase land and to erect buildings for school purposes. In Volume 15, Words and Phrases, page 162-163, the word "establish" is defined as follows: ''Authority to establish and regulate markets, implies, beyond question, the powtr to purchase or provide the site and erect necessary buildings and stalls ." See City of Jacksonville v. Ledwith, 7 So. 885; 26 Fla. 163; Ketchum v. City of Buffalo, 14 N. Y. 356; Gale v. Village of Kalamazoo, 23 Mich. 344.
Paragraph 1, Section 4, Article 7 of the Constitution of 1945 provides, among other things, that the General Assembly shall not !"tave power to delegate to any county the right to l~vy a tax for any purposes except "(3) for educational purposes on property located outside of an independent school system as provided in Article 8 of this Constitution; and (4) to build and repair the public buildings and bridges." The Constitution names other things for which taxes may be levied which are not material here.
Section 32-909 of the Code of 1933, as amended, gives County Boards of Education power to build and repair school houses. Title to the buildings are vested in the County Boards of Education. Under Section 32-943 school houses and proptrty are exempt from taxation. School houses built by county boards of education are public buildings which are used by the public.
I am of the opinion that county boards of education, when school houses are needed, can recommend the levy of a special tax for the purpose of building school houses. I am of the further opinion that a county can levy the special tax under the provision of the Constitution which gives counties th~ right to levy a tax to build and repair public buildings.
The Constitution of the State, in my opinion, provides two ways for the construction of public improvements and paying therefor; the one for cash and the other for credit. See Hogan v. State of Georgia, 133 Ga. 875; Byrd v. Franklin, 151 Ga. 4; Dyer v. Erwin, 160 Ga. 845.
If th~ county board has on hand sufficient funds or can, by a special tax for the current year, levy sufficient funds for building a school house, the same would be considered a cash consideration. On the other hand, if the building needs are so great that the debt could not be met during the current year, it would be necessary to issue bonds under Paragraph 1, Section 7 of the Constitution of 1945, as prescribed by the Act of 1946.
I have reached th~ conclusion, as stated above, notwithstanding the provision of Paragraph 1, Section 12, Article 8 of the Constitution of 1945, which provides in part as follows:
"The fiscal authority of the several counties shall levy a tax for the support and maintenance of education not less than five mills nor greater than fifteen mills (as recommended by the county board of education) upon the dollar on all taxable property in the county located outside independent school systems."
Th~ words "support" and "maintenance" are synonomous. The word "maintain" has been defined as meaning "to support" that which has already been brought into existence. See Kendrick and Roberts v. Warren Bros. Co., 72-A 416; 110 Md. 4.
"Maintain" means to support, to supply means of support, provide for,

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sustain, and keep up. See State v. Board of Trustees of Vanderbilt University, 164 S. W. 1151, 129 Tenn. 279.
The word "establish" differs from the clause "support and maintain". Establish means to originate, to found, to institute, to create. S(;e Village of Hempstead v. Seymour, 69 N. Y. S. 462.
Funds raised for maintenance and support, where available, could be used by the school authority to provide for buildings, the acquisition of buildings being for school purposes. It does not, in my opinion, necessarily follow that the county could levy only five to fifteen mills as provided in this Section of the Constitution for support of schools. Where: school buildings are needed and the tax levied for support and maintenance is not sufficient, the county could provide for school buildings, or public buildings on cash basis, or by issue of bonds.
So far as I have been able to find, the courts of the State of Georgia have not passed upon any question involving the identical facts. I have given you my opinion as to the construction which I think the courts would place upon the different provisions of the Constitution and statutes. The courts, when called upon to pass upon same, might not agree with my view. The question involve:s county matters over which I have no jurisdiction, my view is not binding on any one.

EDUCATION-School Districts

(1) Local school district trustees selected under statute remain in office under the 1945 Constitution.*

(2) The 1945 Constitution abolished the right of the local school district

to levy a maintenance tax.

(3) Local school district maintenance taxes levied prior to the adoption

of the 1945 Constitution should be paid by the tax collector to the treasurer of the local board of trustees.*'*

( 4) School maintenance taxes levied after the adoption of the 1945 Con-

stitution should be paid by the tax collector to the county board of education.

(5) The tax to retire local school district bonds validated prior to adoption

of the 1945 Constitution should be paid by the tax collector to the cecretary of the local board of trustees.***

Dr. M. D. Collins

August 30, 1945

State Superintendent of Schools

You request my opinion on a number of questions regarding school trus-

tees, all of which have arisen because of the adoption of the Constitution of

So held in Wheeler v. Board of Trustees of Fargo Consol. School Dist. et al., 200 Ga. 323, decided Feb. 20, 1946. Local school districts were abolished by the Act of 1946, pp. 206, 209, and provision was made for local school trustees whose powers and duties are defined in Section 11 of the Act.
The Act of 1946, pp. 206, 212, 213 required the secretaries and treasurers of local school districts to turn over to the county board of education all official records, school funds and other property belonging to the school district.
***Now paid by the tax collector to the county board of education under the Act of 1946, pp. 206, 211, 214.

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1945. We have on hand a number of requests for opinions from other school authorities and county attorneys and have been giving them consideration seeking to arrive at conclusions that would answer all of the requests.
From a consideration of the questions asked in your lett:r, and those propounded in other letters, it seems that the principal question to be decided concerns the status of local boards of trustees for local school districts created under the school law of 1919 since the adoption of the Constitution.
Under the School Act of 1919 (Sections 32-901 and 32-902, Code of 1933) each and every county composed one school district and was placed under the control and management of the county board of education selected by the Grand Jury of th: county. Until Amendment No. 1 to the Constitution of 1877 was ratified by the people on August 7th, and proclaimed by the Governor on August 13th of this year, there was no constitutional board of education. Paragraph 1, Section 5 of Article 8 of the Constitution of 1945 writes the statutory county school unit and its officers into the Constitution.
The Constitution provides: "The General Assembly shall have authority to make provision for lOcal trustees of each school in a county system and confer authority upon them to make recommendations as to budgets and employment of teachers and other authorized employees."
Paragraph 3, Section 1, Article 12 of the Constitution provides: "All laws now of force in this State, not inconsist:nt with this Constitution shall remain of force until the same are modified or repealed by the General Assembly."
The new Constitution incorporating the county boards of E:ducation as constitutional officers and providing that the county shall compose one school district does not deal with the powers or authority of the county boards of education. It does not deal with local trustees except as provided for in that portion quoted above which authorizes the General Assembly to make provision for local trust:es. The county board of education had full control and managemeTit of the schools of their respective counties under the School Act of 1919. (See Section 32-909, Code of 1933.) The statutory county boards of education were empowered to employ teachers to serve in the schools under their jurisdiction. (See Section 32-913 of the Code.) They were given the power to divide school districts and to consolidate school districts, or to rearrange school districts whenev:r they deemed it to the best interest of the schools. (See Sections 32-915, 32-916 and 32-917 of the Code.)
Under the School Act of 1919 (Section 32-1101 of the Code) the General Assembly made it the duty of county boards of education to lay off the county into school districts. Since the Constitution of 1945 does not deal with any of the powers, rights and duties of the county boards of education, it does not appear that the statutory duty of the county boards of education as defined in Section 32-1101 of the Code has been changed; neither does it appear that this section is in conflict or inconsistent with the Constitution which merely adopted a part of the same statute so as to make the county boards of education constitutional officers.
The Act of 1919 (Section 32-1104 of the Code) provides a method for the selection of trustees of the local school districts. The Constitution merely

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states that the General Assembly shall have authority to make prov1s1ons for local trustees of each school in the county. The act of 1919 does not seem to conflict with this provision of the Constitution. The duties of the trustees selected under the School Act of 1919 are defined in Section 32-1105 of the Code. In substance the trustees were required to inspect the school work, to make recommendations to the board of education for the advancement of the school interest, to recommend desirable applicants for positions as teachers, to aid the county boards of education in keeping necessary school supplies, and in keeping the schoolhouse and grounds in good condition and equipped for good work. The Constitution as adopted does not prohibit the local trustees from performing any of the duties as defined by this Code Section.
The School Act of 1919 provided the method for the election of the trustees, their qualifications and fixed the term of their office, and they were public officials. Paragraph 6, Section 1 of Article 12 of the new Constitution provides:
"The officers of the Government now existing shall continue in the exercise of their several functions until their successors are duly elected or appointed and qualified. But nothing herein is to apply to any officer, whose office may be abolished by this Constitution."
The Constitution does not abolish local trustees but to the contrary provides that the General Assembly shall have authority to make provision therefor.
I am of the opinion that the local trustees provided for by the Act of the General Assembly remain in office as local trusteEs and retain the powers, rights and duties given them by the Act of 1919, which are not inconsistent with the Constitution of 1945, until the General Assembly sees fit and proper to repeal the Act of 1919 or to amend and modify same. Under the Act of 1919 the local trustees holding office under the statute .has power to make recommendations for the employment of teachers and for the advancement of the school interest. In my opinion the right to make recommendations for the advancement of the school interest would include the right to make recommendations as to budgets as provided for in the Constitution.
Having reached the conclusion that local trustees selected by virtue of the authority of the School Act remain in office since the adoption of the Constitution of 1945, it becomes necessary to deal with certain other powers and rights, which the trustees may or may not now possess because of the adoption of the Constitution.
Under Section 32-1108 of the Code, the school districts created by the county board of education became legal entities and the citizens thereof were authorized to file a petition requesting the ordinary of the county to order an election to determine whether or not the citizens of the district should levy a maintenance tax for school purposes. The tax to be raised in the local district for maintenance purposes was authorized by Paragraph 1, Section 4, Article 8 (Code Section 2-6901) of the old Constitution. From my consideration of the Constitution of 1945, I am of the opinion that the right to levy the local maintenance tax in local districts has been abrogated by the new Constitution. Paragraph 1, Section 4 of Article 7 provides that the General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose except (naming several) among which it is provided:

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"3. For educational purposes upon property located outside of independent school systems, as provided in Article 8 of the Constitution."
Paragraph 1, Section 12 of Article 8 of the new Constitution provides that the fiscal authority of the several counties shall levy a tax for the support and maintenance of education not less than five mills nor greater than fiftE:en mills upon the property of the county located outside independent school systems as may be recommended by the county board of education. The power of a local school district to levy a tax for maintenance purposes of schools as provided for in Section 2-6901 of the Code, did not include the power of such local school districts to levy a tax for the purpose of retiring bonded indebtedness. The right to levy the bond tax for a local school district is derived from Paragraph 1, Section 7, Article 7 of the old Constitution (Code Section 2-5501). The authority to levy the two taxes is separate. See Stapleton, et al., commissioners v. Martin, et al., trustees, 164, Ga. 336 (5).
The authority contained in Section 2-5501 authorizing the levy of a bond tax is retained in the Constitution of 1945. See Paragraph 1, Section 7, Article 7 of the new Constitution. Section 32-1113 of the Code enumerated several rights, powers and duties of trustees in school districts which levy a local tax for maintenance purposes. Since the adoption of the new Constitution destroys the rights and powers given local districts for the levy of a maintenance tax, the rights and powers enumerated herein would, in most instances, be in conflict with the Constitution. The powers and duties with reference to maintenance fund, and the handling of the same, would be in the county boards of education, where the county authorities make their tax levy after the Constitution was changed. If the tax is lE:vied after the adoption of the new Constitution there would be no necessity for the tax digest of the local district, as provided for in this section, unless the local district was under a bonded indebtedness. Trustees of a local entity or district having a bonded indebtedness unpaid would be required to make up the local tax digest of the property subject to taxation for the retirement of the bonds. Section 32-1114 of the Code dealing with the duty of the tax collector to compute and collect taxes on the digest furnished by the local trustees would not apply for maintenance tax levied after the proclamation of the Governor declaring the Constitution adopted. The duty of the tax collector to collect the bond tax on the property of the district voting bonds would remain of force and effect.
Information has been furnished this office by some of the school authorities that the county fiscal authority has made its levy of taxes for county purposes, including local district maintenance tax and bond tax, prior to the date of the ratification of the new Constitution. While ad valorem taxes accrue as of January 1 (Section 92-6201, Code of 1933) taxation ordinarily includes a determination of the rate of levy and the imposition of the levy as an essential part of the sovereign power and process and it follows that property will not ordinarily be deemed taxed until the tax has been levied. Where counties made their tax lE:vy before the adoption of the new Constitution and the levy included maintenance and bond tax for school districts, it is to be assumed that the taxation of the property became fixed and final, and thus constitutes a legal obligation arising to the unit of the government having the authority at the time of the levy to impose same. This statement seems to be borne out

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by the ruling of the Supreme Court in Rayle Electric Membership CorporaJon v. Cook, Revenue Commissioner, 195 Ga. 734 (3). The unit of the government having authority and power to levy taxes for educational purposes, including tax to r(:tire bonds, is the county fiscal authorities which levy the taxes for county purposes. School authorities can only make recommendation to the county authorities. See Smith v. Board of Education of Washington Coun~y. 153 Ga. 758. Board of Education v. Southern Michigan National Bank, 184 Ga. 641. It appears from the decision in the Rayle Electric case, supra, that local taxes for maintenance of schools of local districts, levied prior to the adoption of the new Constitution, should be calculated and collected by the Tax Collector, and accounted for as provided in Section 32-1114 of the Code. This section of the Code provides that where there is a treasurer of a local district, who has qualified by giving bond, the Tax Coll{:ctor should account for local district taxes by paying the same to the Treasurer of the local Board of Trustees. If there is no bonded treasurer, the Tax Collector should pay the funds raised by local taxation for maintenance purposes to the County Board of Education, for the use of the local District, as provided in the Act of 1919.
I have reached the conclusion that the Tax Collector should pay the maintenance tax{:s collected, where they were levied prior to the adoption of the 1945 Constitution, to the Secretary or Treasurer of the Board of Trustees, because of the fact that the Constitution of 1945 does not deal with this paricular part of the Act of 1919, and because the Supreme Court, in construing the Act in Downer, trustee, et al. v. Stevens, superintendent, et al., et vice versa, 194 Ga. 598 (2), ruled as follows:
"The trustees of a local school district are entitled to the custody of local tax funds raised in the manner provid(:d in chapter 32-11 of the Code; and where the treasurer of such district is bonded as required by law, the county board of education is not entitled to hold the same. In the present case it was not error to direct the board to pay over such funds to the bonded treasurers of the local school districts."
In counties where the tax levy was not made by the County authorities prior to the adoption of the new Constitution, the taxation would not become fixed until a levy had been made, and the levy of maintenance school taxes for th{: county would have to be made under the Constitution of 1945, and the maintenance tax would be levied on all property of the county outside independent school districts on recommendation of the Board of Education, and the Tax Collector should proceed to collect the same and remit therefor to the County Board of Education for the maintenance of the schools of the county.
Bond tax for the retirement of bonds issued by local districts shall be levied and assessed against the property of. the district which voted for the bonds. The judgment of validation of bonds issued by a local district, not excepted to, becom{:s final and impresses the property of the district with the obligation and extends to the holder of the bonds the contractual right to enforce the payment thereof by the levy of a proper tax upon the property of the entity voting the tax upon th{:mselves. In Bond, Tax Commissioner, et al. v. Pattillo, et al., 174 Ga. 571 (2), it was ruled as follows:

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"Where the taxation is for a bonded school indebtedness, the rif!;ht to tax extends to real estate which was taxable as such at thE: time the indebtedness was contracted, although it is subsequently transferred to another district by legislative act."
In Chappell v. Small, 194 Ga. 143 ( 4), the Supreme. Court held that property embraced within the territory of a local district at the time of the election for bonds was liable for its part of the taxes necessary to be raised for the purpose of discharging such bondE:d indebtedness. The Constitution of 1877, in Paragraph 2, Section 7, Article 7, required all political divisions of the State which incurred any bonded indebtedness at or before incurring same, to provide for the assessment and collection of an annual tax sufficient to pay the principal and interest of the debt within 30 years of the date of incurring same. The same mandatory provision is included in the Constitution of 1945 in Paragraph 2, Section 7 of Article 7.
The Act of 1919 as amE:nded (Section 32-1402 of the Code) provides in part as follows:
"For the purpose of taking care of and paying the principal and interest of these bonds, the board of trustees shall recommend, and the board of county commissioners or the ordinary, as the case may be, shall levy upon the property subject to taxation in the district, such tax as may be necessary to provide a sinking fund for the retirement of said bonds and for paying th: principal
thereof and the interest thereon; * *' *"
In School Districts having a bonded indebtedness, the Trustees should ascertain from the tax returns made to the Tax Receiver and to the Comptroller General, the total value of property in such districts, and should make a digest thereof and furnish the same to the Tax Collector, as required by Section 321113 of the CodE:. The Tax Collector should compute and collect the taxes levied on the property of the District, and should keep the same separate by School Districts, and turn the collections over to the Secretaries of the local districts monthly, as provided for in Section 32-1114 of the Code. This procedure. for the levy of a tax to retire bonds issued by a local district should be followed until the bonds are retired, or until the General Assembly provides a differ:nt remedy.
Property located outside local districts at the time an election is held for the creation of the bonded indebtedness, would not be liable to pay any part of the debt incurred by the District. See Barber v. Cummings and Sons, 167 Ga. 289. Perry v. Baggett, 164 Ga. 143. Towns, et al. v. Workmore Public School District, 166 Ga. 393. Scarbrough, et al. v. Houston, tax colle;tor, 179 Ga. 194.
Several school authorities have stated in their questions that the local district trustees had obligated the districts to certain debts and contracts made for the purpose of operating the school districts, with the expectation of retiring same from the tax to be collected during the current year. They have request:d that I advise whether or not they could use the maintenance funds and the current maintenance tax for the purpose of retiring such obligations, and whether or not they could use the maintenance tax as collected, where the maintenance tax had been levied for the district prior to the adoption of the Constitution of 1945.

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Due to the fact that the Constitution of 1945 does not deal with any part of the administrative powers and rights or duties of the trustees or tax collectors, and provides that all of the statutes not in conflict with the constitution shall remain of force and effect until the General Assembly repeals or modifies, or changes same, and because of the opinion of the Supreme Court in the Downer case, supra, I reached the conclusion that maintenance funds levied prior to the constitution should be paid to the secretary or treasurer of the local Board of Trustees, as provided for by the School Act of 1919.
The Supreme Court of the State, in Guard v. Board of Education of Hart County, 183 Ga. 82, held that the County Board of Education is not under duty to make payments directly to teachers in local school districts. The Court also held that the County Board is the statutory instrumentality through which the local school trustees become bound in contracts with teachers, and thE: duty of payment of the salary of the teacher is on the local Board of Trustees and on the Treasurer of the local tax district.
Under the ruling made in this case, construing the School Act of 1919, which Act of 1919 is not dealt with in the Constitution, it appears to me that where local trustees have become bound to teachers under contracts executed by the instrumentality provided by law, and the districts, in ordE:r to carry out their obligations with teachers, and to fulfill other contracts, cause their maintenance tax levy to be made by the fiscal authorities of the county prior to the adoption of the new Constitution, that the local trustees would be entitled to handle any maintenance fund that they may have on hand, or that may come into their hands by reason of the maintenance levy made prior to thE: adoption of the Constitution, for the purpose of retiring such obligations which had been entered into by the trustees for the current school year ending July 1, 1946. Since under the Constitution of 1945, no local district maintenance tax can be levied by the district where the levy is made after the adoption of the Constitution, the local trustees, when they have fulfilled their obligations, should remit any balance of maintenance funds to the County Board of Education.
All funds for maintenance purposes levied and collected sincE: the adoption of the new Constitution should be remitted by the Tax Collector directly to the County Board of Education. The local trustees should retain all funds raised by taxation for the purpose of retiring bonded indebtedness, and should keep the same in a sinking fund to be used by the trustees for the purpose of retiring the principal and interest of bonded indebtedness in all districts where such indebtedness exists.
Information has been furnished so that in some counties of the StatE:, the county boards and the local trustees have entered into agreements with each other as to the method to be followed for the retirement of teachers' salaries and other obligations, other than bonded indebtedness, and for the handling of the maintenance fund where levied by local districts, by the County B(l)ard of Education.
No statement made in this letter is to be construed as abridging the rights of the two local school authorities to deal with their administrative problems by mutual agreement. Such mutual agreements, and the handling of administra-

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tive affairs of the schools of a county by agreements, are to be encouraged rather than discouraged.
In one letter addressed to me, it was stated that some school districts of one county in the State had entered into contracts for the erection of buildings to be used in connection with the schools, and I was requested to advise how the matter should be adjusted. I have also been given information that in some sections of the State, school districts acting under the School Act of 1919, have recently completed bond issues for the purpose of erecting and equipping school houses, and that they have on hand the proceeds of the bond issues, awaiting the availability of material and labor before entering into the actual construction of the building.
I have already dealt with the question of spending maintenance funds to carry out contracts and obligations entered into by the trustees of local school districts. The same answer would apply to the use of maintenance funds to discharge contracts entered into by the trustees for improvements to their building and equipment. I am of the opinion that where bonds are issued and sold, the proceeds from the sale of such bonds should be held by the trustees of the local district for the purpose of entering into contracts and completing the building of school houses and furnishing the same, as may have been proposed in the bond elections.
In this connection, the Trustees of a local district act as officials or trustees for both the citizens of the district which voted the indebtedness, and the bondholders who hold the indebtedness.
Under the School Act of 1919 (Code Section 32-909), County Boards of Education are required to furnish proper buildings necessary for the operation of the schools of the county. In local districts, where the people have voted to levy maintenance taxes, or where such district is located in a county levying a county-wide maintenance tax, the people of the district were given the right to assist in the construction of school buildings by imposing upon themselves a local tax for bonded indebtedness. (See Section 32-1401 of the Code, and Dodge County Board of Education v. Dykes, 171 Ga. 317).
The questions which I have sought to answer in this letter constitute local issues which, after all, must be determined by the local county boards and the trustees of the local districts of the different counties. They constitute questions upon which I am not authorized to render official opinions that would be binding upon the local authorities. Many of the questions involve administrative questions that can, and for the best interest of all, should be settled by agreement between the school authorities. My object in going into a full discussion of all of the questions has been to give to you and the State officials the view that I entertain, so that you could in a way know how to deal with the local units insofar as your duties as State officials require. In furnishing this detailed view, while not binding on the local authorities, I hope that they may be benefited and that it will assist them in transferring from the multiple system of administering the school system to the county system, which it appears to be the object of the people to install in the administration of their school affairs.

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EDUCATION-School Districts ( 1) Local school districts were abolished by the Act of 19,16, pp. 206-217, and the trustees were required to turn over to the county board of education all funds derived from maintenance tax or from bond tax, the trustees retaining only advisory functions. (2) The county board of ~;ducation may not use funds collected by a local school district from insurance on a destroyed school building to carry out a contract with an independent system for the transportation and education of children of the former school district, but may use maintenance tax funds for that purpose.
April 23, 1946
Dr. 1\I. D. Collins Superintendent of Schools
Your letter cf April 13th, enclosing a letter from Honorable T. P. Spell, Superintendent Toombs County Schools, and resolution and contract pertaining to Aimwell School with Vidalia School, receivtd.
You state in your letter that the School Trustees of Aimwell School District have on hand insurance money collected when their school building burned and that they would like to use same to carry out the contract, which contract in effect provided that the Vidalia School would extend and furnish to the children of Aimwell School District educational facilities and benefits which were affordtd the children living within the City of Vidalia.
I must call your attention to the Act approved February 1, 1946 entitled an Act to amend Chapter 32-9 of the Code of 1933. This Act has the effect of abolishing local school districts and of r'educing the powers of the trustees of schools to one of advisory capacity only. I do not deem it necessary to specifically call your attention to each of the numerous sections of the Code of 1933 which were by this Act repealed.
Stction 32-1101 of the Code of 1933 relating to the duties of the county board of education to lay off school districts was repealed and in lieu thereof the 1946 Act substituted the following:
"Pursuant to the amendment to the Constitution adopted in 1945, each county of this State, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confided to the control and management of a county board of education."
Sections 32-1104 and 32-1105 of the Code of 1933 relating to local school district trustees and their duties were both repealtd. Section 10 of the 1946 Act provided for the selection of trustees by the county board of education. Under this Section trustees of each school district as constituted prior to August 7, 1945, are to remain the trustees of each school in the district until their terms of office expire.
Section 11 of the 1946 Act provides in substance that the duties of the school trustees appointed by the county board of ~;ducation shall be advisory in nature. They shall make recommendations to the county board as to budgets, employment of teachers, and other authorized employees, and as to other matters relating to the school of which they are trustees. Such recommendations shall be merely advisory and are not binding upon th(: county board. This Section also requires the trustees to turn over to the county

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board of education all funds of all nature derived from maintenance tax or from bond tax.
Section 21 of the 1946 Act repealed Section 32-1402 of the Code and substitutes in lieu thereof a new Section which in part reads as follows:
"In any local or consolidatE:d school district in any county where there is an outstanding bonded indebtedness created for the purpose of building school houses, or equipping school houses, the County Board of Education. shall, upon the effective date of this Act, become the trustee of all funds which shall have been or may be collected from taxes or received from other sources, for the purpose of retiring the principal and interest on said bonds, or for creating a sinking fund for said purpose. The County Board of Education is charged with the duty of disbursing said funds to the bond holders in accordancE: with the terms under which the bonds were issued, and the duty of constructing any buildings, acquiring any building sites, or any equipment for which the bonds were issued. The county Board of Education shall also annually, within the time required by law, or the terms of said bond issue, recommend to the fiscal authorities of the county, the levy upon the property subject to taxation in the district originally voting said bonds, such tax as may be necessary to provide a sinking fund for the rE:tirement of said bonds and for paying the principal thereof and the interest thereon, in accordance with the terms under which said bonds were issued; this to be in addition to the general tax for the maintenance of the schools of said districts."
Under this provision the county board of education is made trustee of all funds which shall have been or may be collected from tax or received from other sources for the purpose of retiring bonds. The board is, also charged with the duty of disbursing such bonds to the bond holders and with constructing any building, acquiring building sites or equipment for which bonds were issued.
While the language is somewhat different from that contained in Section 32-1402 of the Code, I am of the opinion that the county board of education as trustee for any school housE: fund would be under the same restrictions that were placed on trustees of the local school districts under the School Act of 1919.
Under the School Act of 1919, Section 32-1402 of the Code, trustees of local school districts could not use funds collected from insurance on a destroyed building for paying the bonded indebtedness or other obligations of the school district. The Supreme Court said that such a fund was a trust fund to be used by the trustees for the sole purpose of erecting a school building to replace the one so destroyed. See Conley v. Rogers, 169 Ga. 85, where the Supreme Court ruled as follows:
"Where a schoolhouse which has been erected by a school district with the proceeds of an issue of bonds by such district is destroyed by fire, any fund accruing to the trustees of thE: district from payment of a policy of fireinsurance covering such building constitutes a trust fund to be used by the trustees for the sole purpose of erecting a school building to replace the one so destroyed and such money can not be legally diverted to the payment of the bonded indebtedness or other indE:btedness of the district."
The county board of education has, by the Act of 1946, been substituted

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in the place of the trustEes under the Act of 1919 and in my opinion they would be bound by the same rules and regulations as to the use of money arising from burned insured buildings.
Since the adoption of the Constitution of 1945 the local district can no longer make a levy for maint:nance purposes. Paragraph 1, Section 8, Article 8 of the Constitution of 1945 provides that the county board of education shall make a county-wide levy for maintenance purposes of not less than five nor more than fifteen mills on all property located outside of independent school districts.
Under paragraph 1, Section 9, Article 8 of the Constitution of 1945 county boards of education and independent school systems may contract with each other for the education, transportation and care of pupils.
Since the Act of 1946 has the effect of repealing and dissolving the school districts, and restricts the powers of the trustees to that of an advisory board, the school trustees can no longer contract with the independent system of Vidalia. However, the county board of education can enter into a contract with the independent system for the education, transportation and care of pupils of the former Aimwell District and such other children as it may see fit. Such a contract, if it calls for the payment of money by the county board of education, would have to be fulfilled by the payment by the county board of education from the maintenance tax levied by the county board.
All questions presented in the letter from Mr. Spell present purely administrative questions to be decided solely by the county board of education of Toombs County. They would be entitled to the advice and assistance of the County Attorney, should they need legal advice in their administrative questions. I would suggest that they confer with the County Attorney for an opinion as to the legal procedure to be followed under the statement of facts . as given by Mr. Spell in his letter and as evidenced by the resolution and contract.
EDUCATION-School Districts The Act of 1947, pp. 1186-1189, authorizing the county board of education to divide the county into local schoolhouse districts is not in conflict with Article 8, Section 5, Paragraph 1 of the 1945 Constitution.*
May 20, 1947 Dr. M. D. Collins Superintendent of Schools
Your letter of May 12th, enclosing a letter from Mrs. Anne S. Connell, Laurens County School Superintendent, received. You request my opinion. as to whether or not there is a conflict in Bill No. 322 amending the Culpepper School Act and the Constitution of 1945.
Act No. 322 amending the Culpepper School Act gives the county board of education power and authority to divide counties into local schoolhouse districts, whenever the county board deems it necessary for the purpose of
*The Act of 1947, pp. 1186-1189 was held in Davis v. Board of Education of Coffee County et al., 45 S. E. 2d 429, decided Nov. 13, 1947, to conflict with Article 1, Section 4, Paragraph 1 of the 1945 Constitution.

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securing proper school sites and for the best interest of education in the county. The Constitution of 1945, Paragraph 1, Section 5, Article 8 provides that each county, exclusive of independent school systems, shall compose one school district and shall be confined to the control and managem;nt of the county board of education. The same provision of law existed prior to the adoption of the Constitution by virtue of Section 32-901 of the Code of 1933, the same being a part of the School Act of 1919.
Our Supreme Court in the case of Wheeler v. Board of Trustees of Fargo Consolidated School District, 200 Ga. 323, held:
"The Constitution of 1945 do;s not abolish local school district or local school trustees; neither does it change or alter the statutory law with reference to local school bonds."
The court, in my opinion, by such ruling held that the part of the School Act of 1919 which required the board to divide the county into local districts was not in conflict with thE: Constitution. Act No. 322, has the effect, in my opinion, of granting to county boards of education a discretionary power to divide the county into school districts. The part of the 1919 School Act making it mandatory for the county board to divide the county into local school districts was repealed by the Culpepper Act, (Ga. L. 1946, p. 206).
I am, therefore, of the opinion that Act No. 322 is not in conflict with thE: Constitution. The courts of the State have not as yet considered this question. No doubt it will be raised by some bond company where such a school created by virtue of the Act seeks to sell its bonds.

EDUCATION-State Board The State Board of Education may distribute among the different school systems the equipment purchased with funds made available by Federal appropriation under the war emergency program of vocational education, which is not being used in the program.

Dr. M. D. Collins State Superintendent of Schools

April 9, 1946

Your letter of April 8th received. You request that I advise whether or not the State Board of Education has authority to donate and distribute among the different school systems of the State the ;quipment purchased by the State Board of Education with funds made available by Federal appropriation to carry on the war emergency program of vocational education.
In the second paragraph of your letter you state that the title to the equipment is vested in the State Board of Education. It is my understanding that application to the Federal Commission of Education for the purchase of ;quipment and for the allotment of funds to pay for the same are had through the State Board of Education as the educational agency acting for the State of Georgia. Public Law 124, passed by the Federal Congress approved July

3, 1945, United States Code Congressional Service, page 345, provides as follows:

"Salaries and expenses (national defense): For all expenses necessary

to enable the Office of Education to liquidate the program provided for dur-

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ing prior fiscal years under the head Education and Training, Defense Workers (national defense), including personal servicE:s in the District of Columbia, traveling expenses, and printing and binding, $384,900: Provided, That equipment purchased during prior fiscal years from appropriations under the heading 'Educational and Training, Defense Workers (national defense),' in accordance with proposals submitted by educational agencies and approved by the Commissioner, shall remain the property of the agency designated in the proposal and approved by thE: Commissioner to purchase and to hold title to such equipment, and that the supplies authorized by the Commissioner to be purchased shall remain the property of che agency authorized to purchase su:h supplies: Provided further, That no school or school system shall be required to surrender possession or use of any property or equipment which it is using in its educational or training programs." (Emphasis supplied).
I construe this provision of the law to mean that the Federal Congress has declared that thE: title to all equipment purchased through the State Board is vested in the State Board even though the same may have been purchased for some particular school or school system of the State. It is provided, however, that the school or school systems shall not be required to surrender possession or give up the use of such equipment when the school or school system is using it in its educational or training program.
The Vocational Education Act of 1943 (Ga. L. 1943, pp. 672-673) Sections 32-2206 through 32-2217, Cumulative Pocket Part of the Annotated Code, provides that thE: State Board of Education shall apportion and distribute all funds to the various local school units where such funds are received fer vocational training. The Act likewise provides that the State Board of Education, in its discretion, may apportion and distribute any machinery, material, equipment, or other property owned or possessed or which may be acquired by purchase or gift to the various school units.
The Act approved March 8, 1945, authorizing State Area Vocational Schools (Ga. L. 1945, pp. 229-232) empowers the State Board of Education to receive and acquire property by donations, gifts and purchase. The Board is likewise authorized and empowered to allocate and distribute such property to the different State Area Schools established by virtue of the Act. Section 6 of the Act provides that nothing in the Act shall be construed as repc,aling or modifying any of the laws relative to vocational training in the common schocls of the State. The Board is authorized, in its discretion, to use the equipment owned by the State Board in both the common schools and the area district schools.
It is, therefore, my opinion that under the Federal Act the State Board of Educaticn can not require a school or school system to surrender or give up the use of any property or equipment which it is using in its training program, where such property was obtained with funds appropriated for education and training of defense workers. The title to such property is, however, in the State Board of Education. It is my further opinion that the State Board of Education has the right and power, in its discretion, to make available to the school systems of the State any property or equipment which it has on hand which is not being used by any school cr school system in its education program, or which may be voluntarily surrendered by any school or school system

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to the State Board of Education. The Board may donate the same to the local systems, or it may enter into such contracts with the local systE:ms which they think will be to the best advantage in carrying out the vocational training program, and which may make its benefits more equally available to all the children of the State.
EDUCATION-State Board The State Board of Education must base its allocation of the equalization fund to local units upon the tax digest adopted by. the local authorities, regardless of the validity of an amendment to the Constitution of 1877, adopted simultaneously with the 1945 Constitution, authorizing one county board of education to levy a tax on the gross digest without deducting homestead exemption.*
July 3, 1946 Hon. J. I. Allman Assistant State School Superintendent
Your letter of July 1st received. You refer to a condition that exists in Irwin County, Georgia, because of a local constitutional amendment which was adop~ed on August 7th, at the time the Constitution of 1945 was adop'ted. The local amendment sought to amend thE: Constitution of 1877. The Supreme Court has held that the Constitution of 1945 is a new Constitution.
You are concerned with this constitutional amendment due to the fact that Irwin County Board of Education is permitted to levy a tax on the gro~s tax digest without deducting homestead exemptions, and you request that I advise on what basis you should allocate State funds, that is whether or not you should u~E: the tax digest without the deduction of homestead exemptions, or whether or not you should deduct from the tax digest for the county Board of Education the homestead exemptions and make your allotment thereon.
Section 32-621 of the 1945 Cumulative Pocket Part of the Annotated Code provides that the Equalization of Educational Opportunities Law shall not modify or effect Section 32-948 of the Code relating to the creation of an equaliza'.icn fund for public schools and for its distribution.
Section 32-948 of the Code provides as follows: "In addition to the regular appropriation for the support of the public schools, the General Assembly shall provide an equalization fund, which shall be disbursed by the State Board of Education for the purpose of more nearly l'qualizing the educational opportunities of the children of the several counties. The State Board of Education, in its distribution of said equalization fund to county boards of education, shall take into consideration the possible returns from laxable values for school purposes, the extent to which local tax aid has been utilized, the educational needs, and the local inequalities existing in the several counties. No county or independent system shall share in the equalization fund for any year unless it levies at least five mills for a local tax for i~s public schools for that year."
0 An amendment to the Constitution of 1877, adopted simultaneous!}' with the 1945 Constitution, cannot be sustained. Alexander v. Fulton County, et al., 201 Ga. 857, decided Feb. 7, 1947.

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This Section provides that the State Board of Education, in its distribution of the equalization fund, shall take into consideration the possible returns from taxable values for school purposes. This Section should be construed in light of Subparagraph 3 of Section 32-614 of th(: 1945 Cumulative Pocket Part of the Annotated Code, which Section provides that the common school fund and appropriations made by the General Assembly for common school purposes shall b(: used by the Board of Education to pay teachers, pay the salaries of county school superintendents, pay the expenses of the State Department of Education, and as provided in Subparagraph 3 as follows:
"To pay to each local unit of administration, as hereinbefore defined, for the purpose of meeting local administrative expenses, the cost of operating and maintaining school plants, meeting fixed charges, the expense of auxiliary agencies, the expenses of transportation, and other administrative expenses, a sum sufficient, when added to the total amount which may be raised by such local unit of administration, by a local tax levy of five mills, to equal one-third of the amount allotted to such local unit of administration for salaries."
Subparagraph 3 provides for the allocation of State funds to local units for local administrative expenses and contemplates that the amount paid by the State shall be added to the total amount which may be raised by local units by a local tax levy of five mills on the taxable property of the local unit.
I am not concerning myself with the lE:gality of the local constitutional amendment passed by the General Assembly and adopted by the people at the time of the adoption of the 1945 Constitution but amending the Constitution of 1877. There is a question of whether or not such an amendment would apply to the Constitution of 1945 since it sought only to amend the Constitution of 1877 and not the Constitution of 1945. The question of whether or not such a procedure is legal, and whether or not such an amendment bE:comes a part of the Constitution of 1945 is a question to be determined by the local authorities and finally by the Supreme Court of the State.
Should the local authorities of Irwin County consider the amendment legal and valid and make their tax digest to include the taxable property of the county without deducting the homestead exemptions, you should, in my opinion, use the tax digest adopted by the local authorities. If the local authorities do not deduct the home exemptions you would have no authority to deduct the home exemptions and use a different digest from the one upon which they levy their tax to determine the amount of allocations to be made to the local units. Should the local units deduct the tax exemptions for homes as provided by the Constitution of 1945 and lE:vy their tax upon the net digest after the deduction of the homestead exemptions that would be the tax digest that you should follow. In other words, you should be controlled, and should follow the actual tax digest upon which the local authorities levy school tax.

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EDUCATION-State Board The State Board of Education may not withhold funds allotted to a county until the county board of education agrees to abide by the decision of the State Board in a matter appealed from the county board. Mandamus is an available remedy.
September 4, 1946 Dr. M. D. Collins State Superintendent of Schools
Your letter of August 30th received. You recite facts which show that the County School Board of Telfair County decided to move a schoolhouse from one point to another in the county, that the decision of the County Board was appealed to the State Board of Education and that the State Board of Education held contrary to that of the County Board. The: facts also show that the County Board is taking steps to disregard the decision rendered by the State Board. You asked whether or not the State Board of Education would be authorized to withhold school funds from the county until the County Board agrees with the decision of the State Board.
Under the school statutes a right of appeal is given from decisions of the County Board to the State Board and the judgme:nt of the State Board is final.
I am unable to find anything in the school statutes which intimates that the State Board has any power to put into effect any of its final decisions.
I am of the opinion that the State Board of Education would not have the right to withhold from the County Board of Education State funds alloted to the county by reason of financial support given schools by the State. I am of the further opinion that the final judgment of the State Board could be put into effect by thE: Superior Court by equitable proceedings, most likely by mandamus proceedings. In Board of Education of Long County, et al. v. Board of Education of Liberty County, 173 Ga. 203 (3) the Supreme Court held as follows:
"3. Mandamus is an available remedy to enforce the performance of an official duty, whenever from any cause a defect of legal justice would ensue from a failure or improper fulfillment of an official duty, if there be: no other specific legal remedy for the legal right."
In that case an appeal had been taken to the State Board of Education and the State Board of Education had entered a final judgment which the Board of Education of Long County refused to comply with. The court ruled that the County Board with appeal to the State Board constituted courts for passing upon school matters and Chief Justice Russell on page: 209 states:
"We are of the opinion that the trial judge in this case did not err in holding that the judgment re:ndered by the State Board of Education could be enforced, and of 'right should be enforced, by mandamus."

1!)4
EDUCATION-State Board A school offering courses for instructing dental technicians and granting certificates or diplomas need not be incorporated unless so required by regulation of the State Board of Education.
Dec. 4, 1946 Hon. J. I. Allman Assistant State School Superintendent
You requestE:d that I advise whether or not a school offering courses for instructing Dental Technicians and granting certificates should be incorporated and have charter giving it power to issue diplomas.
On January 16, 1942, Dr. Collins asked Governor Arnall, then Attorney General, a similar question. Governor Arnall answered by quoting Section 34-415 cf the Annotated Code. (Ga. L. 1937 p. 868). Opinions of the Attorney General, 1941-43, p. 59..
The section provides: "The State Board of Education shall prescribe, by rE:gulation, standard requirements for universities, colleges, normal or professional schools, conferring degrees or issuing diplomas in this State, and no charter granting the right to confer such degrees or diplomas shall be granted or issued until the applicants therefor have obtained from the State Board of Education a certificate showing that such requirements of the Board have been met." I do not find any statute which directly requires school or colleges to be incorporated. Under SE:ction 22-401 of the Code they may be incorporated by the Superior Court. However before the charter is granted by the Superior Court the applicants must show, by certificate, that they have met the requirements of the State Board of Education. The word "College" usually would imply a corporation. However it does sometime apply to unincorporated associations. Sec. 4, 14 C.J.S. 1333 provides in part as follows: "Colleges and universities may bE: incorp~rated as either public or private corporations, or they may be unincorporated." The regulation of educational institutions is a matter peculiarly affected with public interest involving the welfare of the. public and as such is subject to statutory regulations. However, the only statute that I can find in the State is that quoted above. It is my opinion, therefore, that the only regulation that exists at thE: preent time is vested in the State Board of Education and that those who would offer courses of instruction on any subject, and who would issue certifica~es or , i mas must comply with such regulations as may be set up by the board of education.

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EDUCATION-State Board The State Board of Education may establish and operate area trade, vocational and industrial schools, which are exempt from State and Federal taxes as instrumentalities of the State.
DE:cember 9, 1946 Dr. M. D. Collins State Superintendent of Schools
Your letter of November 30th received. In your letter you propound three questions rela:ing to the establishment of a State trade and technical school at Souther Field, Sumter County, Americus, GE:orgia. In your first and third questions you ask whether or not the action of the State Board of Education in establishing the trade and technical school is legal under existing State laws, and whether or not the institution will be an instrumentality of the State and immune from Federal taxation.
Under Section 32-2218 of the 1945 Pocket Part of thE: Annotated Code (Ga. L. 1945, pp. 229-230) the State Board of Education is author"zed and empowered to locate, set up, establish, operate, maintain and carry on State area trade, vocational and industrial schools for teaching vocational, industrial and trade subjects. Under this Section schools set up by the Stat~: Board of Education are set up for and on behalf of the State of Georgia. The Act of 1945 authorizing the State Board to set up trade schools gives the Board of Education power to employ teachers, supervisors and directors, and the salary of such employees are paid out of funds made available by appropriations of Congress, the State of Georgia, and from gifts or donations for such purposes. SE:e Section 32-2222, Cumulative Pocket Part Annotated Code.
The answer to question three, therefore, is that the State Board of Education is authorized to set up the State trade school as outlined in the copy of resolution which was attached to your letter, and such school is legal under existing State laws. The Act of 1945 providing that such schools are set up for and on behalf of the Stat: and providing for their operation from State appropriations makes this school a State school and an instrumentality of the State and as such the school is not subject to State or Federal taxation. See Section 51, Am. Jur. 552, Section 560 and 30 Am. Jur., page 123, Section 28.
In the second question of your letter you asked whether or not the school would meet the requirements for tax exemption under Section 101 (6) of the Intunal Revenue Code.
The prevision of the Internal Revenue Code to which you refer provides in substance that corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes the earnings of which do not inure to the benefit of private stcckholders or individuals, shall be exempt from taxation. I do not think that the State school to be organized under the 1945 Act as provided for in the resolution would be classified as coming within the terms of this provision of the Internal RE:venue Code. While the school will be carried on for E>ducational purposes, it will be operated not as a corporation, community chest, fund or foundation, but as an instrumentality of the State, and as before stated will be exempt from State and Federal taxation as being a part or instrumentality of the State.

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EDUCATION-State Board An appeal to the State Board of Education from a ruling of a county board of .education is not a de novo investigation.*
February 3, 1947 Dr. M. D. Collins State Superintendent of Schools
Your letter of January 9th received. You rE:quest that I advise whether or not a hearing appealed to the State Board of Education from a ruling of the county board would be a de novo investigation or merely one of appellate jurisdiction.
Section 32-414 of the 1945 Cumulative Pocket Part of the Annotat~:d Code (Ga. L. 1937, pp. 864-867) provides as follows:
"The State Board of Education shall have appellate jurisdiction in all school matters which may be appealed from any county or city board of education, and its decisions in all such matters shall be final and conclusive. Appeals to the Board must be made in writing through the county superintendent of schools, or the secretary of thE: Official Board of Independent Systems, and must distinctly set forth the question of law, as well as the facts in the case. The Board shall provide by regulation for notice to the opposite party and for hearing on the appeal."
I have been unable to find any court decision construing this Section as to procedure and practice before the State Board of Education. The State Board of Education is givE:n appellate jurisdiction and this Section provides that appeals must be in writing and must distinctly set forth the questions of law as well as the facts in the case. From this language I would say that it is not a de novo investigation but constitutes a review of the facts and findings made by the county board of education. .
The last sentence of this Section provides that the State Board of Education shall provide by regulation for notice to thE: opposite party and for hearing on the appeal. Because of the last sentence of this Section I am of the opinion that the Board should give the opposite party or his attorney an opportunity to appear before the Board and point out any errors committed by the county board. I think, however, that after such a hearing the Board would determine the question on the facts and evidence introduced before the county board.
EDUCATION-State Board The State Board of Education may administer funds appropriated by the Federal Govunment for the promotion and development of vocational education. March 24, 1947
Dr. M. D. Collins State Superintendent of Schools
Your letter of March 19th received. You request my official opmwn as to the authority of the State Board of Education to administer funds appro-
*So held in Boney v. County Board of Education of Telfair County et a!., 45 S. E. 2d 442, decided Nov. 10, 1947.

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priated by the Federal Government for the promotion and development of vocational education.
Section 32-2201 of the Code of 1933 accepts the provisions of an Act of the Congress of the United States providing for the promotion of vocational education and the cooperation of thE: State with the Federal Government.
Section 32-2204 of the Code of 1933 provides in part as follows: "The State Board of Education shall have the full power to represent the State in any and all matters in reference to the expenditure, distribution and
disbursement of money rE:ceived from the United States Government * *' *
and to appropriate and use said moneys in whatever way in their discretion will best subserve the interests of the State, and carry out the spirit and intent
of said Act of Congress * * *."
In 1945 the General Assembly passed additional legislation relating to vocational education. This Act provided that the State Board of Education acting on behalf of the State is authorized to locate, set up and establish State Area TradE:, Vocational and Industrial schools. See Section 32-2218, 1945 Cumulative Pocket Part of the Annotated Code.
Section 32-2220 of the 1945 Cumulative Pocket Part of the Annotated Code, being a part of the 1945 Act, provides in part as follows:
"Said State Board of Education is hereby authorized and empowered to accept and receive donations and gifts, of both real and personal property, including machinery and equipment, from either public or private sources as may be offerE:d unconditionally, or under conditions related to the teaching of vocational, industrial or trade courses, and to accept, receive, use, distribute and administer any and all appropriations that may be made by the Federal Congress to assist the State in the maintenance and operation of State area
trade, industrial or vocational schools, * * *."
Under and by virtue of the aforestated provisions of the Georgia statute, the State Board of Education has full authority to administer the vocational educational program as it relatE:s to the public schools of this State, and the State may itself operate through the State Board of Education Area Vocational Schools.
EDUCATION-State Board The State Board of Education may contract with the Veterans Administration to use Federal funds to carry on the Veterans Farm Training Program in the high schools of the State and may authorize the State Superintendent of Schools to execute the contract on behalf of the Board.
March 31, 1947 Dr. M. D. Collins Superintendent of Schools
Your letter of March 27, including a copy of contract entered into between the StatE: Department of Education and the Veterans Administration relating to Federal funds to carry on Veterans Farm Training Program in the high schools of the State, received.
You state that someone has questioned the authority of the State Board

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of Education to enter into the contract and request that I advise as to the power of the State Board relative to the making of such a contract.
Under an Act of 1945, (Ga. L. 1943, p. 194), it was provided:
"The State Board of Education is hereby authorized and empowered to receive moneys made available from Federal grants and/or from other available funds to provide education of noncollege grade for persons above the age of 18 years; and to make the necessary rules and regulations governing the education of such persons subject to such limitations as may be imposed in the grant or appropriation of such funds."
Section 32-417, 1945 Cumulative Pocket Part of Annotated Code. Under the School Act of 1937, (Ga. L. 1937, pp. 864, 867), as amended, (Ga. L. 1941, p. 568), and as codified in Section 32-413, 1945 Cumulative Pocket Part of Annotated Code, it is provided in part as follows:
"Said Board is hereby authorized and empowered to receive, accept, hold and operate, on behalf of the State of Georgia, donations, grants, gifts, devises and bequests of real, ptrsonal and mixed property of every kind and character, to lease, manage and otherwise administer the same for the use, benefit and behoof of the common school system of Georgia, and to accept on behalf of the State of Georgia any funds which may be now or hereafter provided for, or be or hereafter becoml': available or allotted to the State of Georgia by virtue of any appropriation by Congress or under any governmental regulation, order or declaration of policy for either vocational or other educational purposes conducted either in or out of school, in connection with, or as an incident of, any program of vocational education or hereafter establishEOd as essential to national defense either for industrial or agricultural occupations, and whether as part of a Federal or a State program or a combination of both, in furtherance of vocational educational objectives generally; and said Board is authorized and empowered to acquire and hold title for and on behalf of the State of Georgia, for the benefit of the common school system thereof, any equipment and/or supplies, both permanent and expendable, that may be necessary for such purposes, and to act as the contracting ag~:nt therefor and the custodian thereof, and to delegate, in whole or in part, any function or activity enumerated or contemplated hereunder, and to contract with and cooperate with any department, agency or instrumentality either of the State of Georgia or of the United States, in any manner which shall be requisite or incident hereto, which in the judgment of said Board may be deemed proper for the carrying into effect of the purposes of this Chapter, and to use so much of the common school fund or other funds appropriated by the General Assembly as may be necessary to match any such FedE:ral aid, or to meet the terms of any past, present or future grant to the State or any local school unit whereby the same respectively may be enabled to derive full advantage of the benefits thereof to the State of Georgia as contemplated under the terms and provisions of any such grant for educational purposes; no funds shall be used to meet any past or future grant to the State but shall be available only for any present grant now available."
Under the provisions of the Georgia statute as codified above, the State Board of Education has amplEO authority to enter into the contract to secure th'e funds to reimburse the common schools for teaching students who have

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passed the common school age as is provided for in the contract, a copy of which was enclosed with your letter. Under Section 32-504 of the Code of 1933 the State Superintendent of Schools is Secretary and Executive Agent of the State Board of Education, and the State Board of Education has authority to delegate to the Stcretary the power to execute and sign any contract which has been given approval by the Board of Education. Attached to your letter was a certificate of the Chairman of the Board which fully authorized Dr. Collins to sign and execute the contract on behalf of the State Board of Education.

EDUCATION-State Board The State Board of Education is the proper agency to receive and administer funds appropriated by the Federal Government to reimburse State Vocational Schools becausE; of approved training accorded veterans, and the Veterans Education Council may not designate the Department of Vocational Education to receive such funds.

Ron. F. H. Rayfield, Chairman Veterans Education Council

August 5, 1947

In a letter dated July 14th, you requested an official opwwn "as to whether or not Section 12 of Act No. 300 (Ga. L. 1947, p. 1148) makes it illegal for the United States Veterans Administration to pay tuition to the Vocational Department of the State Department of Education". This interrogatory when coupltd with the facts as presented in your letter is construed as presenting the further inquiry as to whether the Veterans Education Council, acting under the general authority given it by the Veterans Education Act of 1947 and more specifically under that given in Section 12 thereof (Ga. L. 1947, pp. 1143-1151), may designate that funds reimbursable to State Vocational Schools, because of approved training accorded Veterans, be paid to the Department of Vocational Education.

It is to be observtd that the Department of Vocational Education is a part of and a division within the State Board of Education. For this reason, in determining this question, it is necessary also to consider the statutes pertaining to the State Board of Education along with the Veterans Education Act of 1947.
Section 12 of the Veterans Education Act of 1947, p. 1148, in its entirety is as follows:

"The County Superintendents of Schools, and the County Boards of Education of the various counties shall cooperate with the Council and the Director of Veterans Education in carrying on the VE:terans education and training program herein provided for, and shall require local schools to conduct such classes, keep such records, and generally to do such things as may be necessary to effectively carry on the program. They are authorized to receive such compensation as may be allowed under Federal laws or otherwisE: for tuition and other charges or fees for training veterans."
The language of this Section makes it clear that it was not thE: intent of the General Assembly to repeal nor amend any statute, or portion of statute,

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having to do with the authority of the State Board of Education to receiV(:' federal funds, donations or gifts. Neither does a reference to the title of the Veterans Education Act of 1947 reveal such an intent.
In Article 3, Section 7, Par. 16, Constitution of the State of Georgia, it is provided that:
"No law, or section of the code, shall be amended or repealed by mere reference to its title, or to the number of the Stction of the Code, but the amending, or repealing act, shall distinctly describe the law to be amended or repealed, as well as the alteration to be made."
While repeal by implication of statutes is possible, Edalgo et al. v. Southern Railway Company, 129 Ga. 258 at 266, it is not favored, Southern Railway Company v. Melton, 133 Ga. 277.
It is to b(:' noted that the 1933 Ga. Code, Cumulative Pocket Part, 1945, provides in Section 32-413 in part as follows:
"Said Board (of Education) is hereby authorized and empowered to receive, accept, hold and operate, on behalf of the State of Georgia, donations, grants, gifts, devises and bequests of real, personal and mixed property of every kind and character, to lease, manage and otherwise administtr the same for the use, benefit and behoof of the common school system of Georgia, and to accept on behalf of the State of Georgia any funds which may be now or hereafter provided for, or be or hereafter become available or allotted to the State of Georgia by virtue o.f any appropriation by Congress or under any governmental regulation, order or declaration of policy for either vocational or other educational purposes conducted either in or out of school, in connection with or as an incident of, any program of vocational education now or hereafter established as essential to national defense either for industrial or agricultural occupations, and whether as part of a Federal or a State program or a combination of both, in furtherance of vocational educational objectives generally ..." (Emphasis supplied).
In the Vocational Education Act of 1943 (Ga. L. 1943, p. 672) as amended by the Vocational Education Act of 1947 (Ga. L. 1947, p. 1161), it is provided that:
"Section 6. The State Board of Education shall have the authority to: (1) Approve applications from local school u'nits within the State, and to apportion and distribute thereto any and all special or additional funds which may be made available by appropriation, or otherwise, to aid and assist local units in paying the cost of training persons enrolled in the vocational courses; . . ."
Again in Section 3 of the State Area Vocational Schools Act of 1945 (Ga. L. 1945, p. 229), it is provided:
"That said State Board of Education is hereby authorized and empowered to accept and receive donations and gifts, of both real and personal property, including machinery and equipment, from either public or private sources as may be offered unconditionally, or under conditions related to the teaching of Vocational, Industrial, or Trade courses, and to accept, receive, use, distribute and administer any and all appropriations that may be made by the Federal Congress to assist the State in the maintenance and operation of State Area Trade, Industrial or Vocational Schools, and to administer all funds

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allocated or appropriated by the State of Georgia for setting up, maintaining and operating such State Area Schools, and to manage, administer and use for such purposes, all funds that may be given or donated by individuals or other public or private agencies."
From the foregoing provisions of law it is to be perceive:d that nowhere is the Department of Vocational Education authorized to receive funds, donations or gifts, but rather that the State Board of Education is the proper agency for such purposes. It is, therefore, my opinion that the: Veterans Education Council may not direct that funds receivable by the vocational schools of the State for the vocational training of veterans be paid properly to the Department of Vocational Education. Further, it is my opinion that the State Board of Education is the proper agency for the receiving of gifts and donations and funds which may be available for carrying out vocational education. While: by its terms the Veterans Education Act of 1947 requires the State Board of Education to cooperate with the Veterans Education Council in carrying out the provisions of said Act, nowhere is there authority given to the latter to direct the former to be the central agency to receive funds payable by the Federal Government for vocational education accorded veterans.
It must be understood that this opinion is restricted in meaning to include only, (1) that the Department of Vocational Education may not receive funds allocable from the Federal Government, even under the attempted authority so to do of the Veterans Education Council. And (2) that the State Board of Education is the proper age:ncy for receiving such funds, and this, by virtue of existing laws on the point which directly pertains to said Board and not under any assumed power of the Veterans Education Council.

EDUCATION-State Board The State Board of Education, if approved by the Veterans Education Council as an institution for providing related instruction for on-the-job trainees, may receive reimbursement for its costs from the Veterans Administration.

Hon. F. H. Rayfield, Chairman Veterans Education Council

August 22, 1947

This will acknowledge your inquiry of August 12, as to whether or not the State Board of Education would be authorized by State law to receive funds from the Veterans Administration for reimbursing the costs incident to providing related training for on-the-job-trainee veterans assuming that the Board of Education has been approved by the Veterans Education Council as an institution for providing this related instruction.
Title II, Chapter IV, Part VIII, Paragraphs 4 and 5, respectively, of Public Law 346, 78th Congress, state in part as follows:
"From time to time the Administrator shall secure from the appropriate agency of each State a list of the educational and training institutions (including industrial establishments), within such jurisdiction, which are qualified and equipped to furnish education or training (including apprenticeship and re:fresher or retraining training), which institutions, together with such addi-

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tiona! ones as may be recognized and approved by the Administrator, shall be deemed qualified and approved to furnish education or training to such persons as shall enroll under this part. . ."
"The Administrator shall pay to the educational or training institution, for each person enrolled in full time or part time course of education or training, the customary cost of tuition, and such laboratory, library, health, infirmary, and other similar fees as are customarily charged, and may pay for books, supplies, equipment, and other necessary expE:nses, exclusive of board, lodging, other living expenses, and travel, as are generally required for the successful pursuit and complEtion of the course by other students in the institution. . . ."
Again in Public Law 679, 79th Congress, an amendment to Section 3, Paragraph 11 of Part VIII of Veterans Regulation 1 (a) provides in part as follows:
"As used on this part the term 'Other training on the job' shall include courses offtred by establishments approved by the appropriate agency of the State or the Administrator whenever such courses of training on the job are furnished in accordance with the following provisions: ..."
Elsewhere in the Acts cited references have been made to the proper approving agency of the State. In Georgia the Veterans Education Council has bE:en designated by law as the proper approving agency of this State. (See Ga. L. 1947, p. 1143).
By Georgia Law, the State Board of Education is authorized to receive Federal funds along with other donations, gifts, etc. It follows, therefore, that if the State Board of Education has been approved by the Veterans Education Council as an institution for providing related instruction for on-the-jobtrainee veterans, the said Board is authorized by State Law to receive funds from the VE:terans Administration for reimbursing the costs incident to providing this related training which, under the approval tendered by the said Council, the Board administers and supervises.
EDUCATION-State Board The State Board of Education must advertise for competitive bids before entering into contracts for the purchase of books which have been recommended by the Professional Textbook Committee.
December 15, 1947 Dr. M. D. Collins Superintendent of Schools
In your letter of December 6th you request that I advise whether or not under Georgia Free Textbook Law it is necessary for the State Board of Education to advertise for bids on books which have bE:en recommended by the Professional Textbook Committee, before the State Board of Education can enter into contracts with the publishing companies for said books.
I call your attention to Section 32-717 of the Pocket Part to Annotated Code, which section is taken from Acts 1937, pp. 896, 899, and which provides as follows:
"All purchases, listings, or adoptions of textbooks for use in the public

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schools of the State, as authorized herein, shall be made upon comp~titive sealed bids or proposals, after notice of the time and place of receiving same has been published once in each of at least three newspapers of general circulation published in the State, at least 30 days prior to the date set for receiving proposals, as d~termined by the State Board."
You will note that this section requires that contracts be let upon competitive bids or proposals after notice of the time and place of receiving bids has been published once in each of at least three newspapers of general circulation published in the State, at least 30 days prior to the date set for receiving proposals, as determined by the State Board.
Under this s~ction I am of the opinion that it will be necessary for you to advertise for bids before letting contracts.

EDUCATION-State School Superintendent The State Superintendent of Schools may not decide a dispute involving title to office of county superintendent of schools.

Dr. M. D. Collins

November 20, 1945

State Superintendent of Schools

I am pleased to acknowledge your letter of November 13th. While your

letter, together with the enclosures, fails to give all of the facts, they do contain sufficiE:nt data for me to use same as a basis for this opinion. Your letter is requesting an official opinion as to the right of Mrs. Anne S. Parkerson or Mr. J. F. Hart to hold title to the office of County School Superin-

tendent of Laurens County.

Before we launch into an analysis of the legal aspects of the. problem re-

lating to the legal title to hold office, it is necessary first for us to determine whether or not you, as State Superintendent of Schools, are required or authorized to decide such an issue. If the law makes it your duty to render decisions in cases where the title to the office of county school superintendent is in dispute, then of course it becomes my duty as Attorney General, to officially advise you in the prE:mises. On the other hand, if proceedings of this nature have not been vested in the State Superintendent of Schools for determination, then it follows that the Attorney General is prohibited by law from rendering an official opinion in the premises which would be binding on the contestants to the office or any one else. Section 40-1602 of the Code requires the Attorney General "to give his opinion in writing, or otherwise, on any qti~stion of law connected with the interests of the State or with the duties of any of the departments."
Section 32-505 of the Code, in setting out the duties of the State Superintendent of Schools, provides:

"The State Superintendent of Schools shall carry out and enforce all the rules and regulations of the State Board of Education and the laws governing the schools receiving State aid; he shall from time to time make such recommendations to the State Board as may affect the welfare and efficiency of the public schools; he shall have authority to suspend a county superintendent of schools for incompetency, wilful neglect of duty, misconduct, immorality

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or the comm1sswn of crime involving moral turpitude: Providing, of course, that all of his acts in this matter shall be subject to the approval of the State Board of Education, and the party so susp:nded may appeal his case to the State Board, whose decision shall be final."
While the above provision of law gives the State Superintendent of Schools the right to suspend a county superintendent of schools for certain causes, it does not provide or empower the State Superintendent of Schools with authority to det:rmine the title to such county offices.
Section 32-905 of the Code provides in part as follows:
" ... The evidence of the election of a county superintendent of schools shall be the certified statement of the secretary of the meeting of the board at which the election was held. . . ."
Section 32-1003 of the Code provides:
"In the case of a vacancy by death, resignation or r:moval from office, or from any cause whatever, in the office of county superintendent of schools in any county, the county board of education shall elect a county superintendent of schools for the unexpired term".
Clearly, the above provision of law places the responsibility of filling a vacancy in the office of county superintendent of schools in the county board of education, and the State Superintendent of Schools does not have such authority.
The county board of education is given wide discretion in the authority to be exercised over county superintendents of schools. Section 32-912 of the Code provides in part as follows:
"... Said board may suspend the county superintendent of schools for incompetency, wilful neglect of duty, misconduct, immorality or the commission of crime involving moral turpitude, . . ."
Section 32-1008 of the Cod: provides:
"The county superintendent of schools may be removed from office before the expiration of his term by a majority vote of the board of education for inefficiency, incapacity, neglect of duty or malfeasance or corruption in office: Provided, that any superintendent so removed shall have the right of appeal from the action of the county board to the State Superintendent of Schools, and from the State Sup:rintendent of Schools to the State Board of Education."
I have cited the above provisions of law for the purpose of showing the authority placed in the local board of education over the county superintendent of schools, and to further illustrate that under these provisions of law, the authority of the State Sup:rintendent of Schools does not commence in snch a controversy until an appeal has first been taken from the action of the county board of education. From the: facts presented to me, it is clear that no appeal from the county board has been taken, and therefore, the controversy has not been appealed to the State Superintendent of Schools as provided above. As a matter of fact, it seems that the present controversy is not one capable of being appealed to the State Superinte:ndent of Schools, since the question involved appears not to be the removal or susp:nsion of an incumbent from office, but rather a question of trying the title to the local of-

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fice of county superintendent of schools and determining which of two parties has the better and stronger right to occupy the: said office.
The mere fact that the State issues a commission to the county school superintendent does not justify the State Superintendent of Schools to assume to determine the proper party to hold the said local office. The issuancE; of the commission is only a ministerial act and is not conclusive as to the right to hold office. See Hathcock v. McGouirk, 119 Ga. 973; McCants v. Layfield, 149 Ga. 231.
In Bennett v. Public Service Commission of Georgia, 160 Ga. 189, the Court held:
"A commission issued by the: Governor to a duly elected member of the Public Service Commission of this State, in which the term of such officer is stated to commence on a designated date, is not conclusive evidence of the right of such officer to be inducted into office on such designated date, and does not prevent the courts from looking behind the commission and determining, in a proper case, when the term of such officer legally begins."
From the above de:cisions of the Supreme Court of this State, it is clear that the issuance of a commission is only prima facie evidence of the right of the person named therein to hold office, and is not at all conclusive and cannot be used to prevent the courts from looking behind the commission and determining for itself who is the proper party to exercise the powers of thE; disputed office. The issuance of a commission is purely a ministerial duty and is based upon action taken by the county board of education under the authority contained in Section 32-1003, supra. This statute clearly makes it the duty of the county board of education to e:lect a county superintendent of schools, for the unexpired term of office. The commission issued by the State is simply a ministerial act confirming the action of the local county board of education. Therefore, it is not sound logic nor good legalistic reasoning to hold that simply because the State issues a commission to the county superintendent of schools that the State Superintendent of Schools should likewise set himself up as a part of the judiciary to determine the titlE; of contestants to that office.
It has long been held in this State that title to public office presents a judicial question for determination by the courts in a proper proceeding. Numerous cases involving questions of a similar character have been tried by the courts under Title 64 of the Amended Code: relating to mandamus and quo warranto actions. Section 64-201 of the Code provides:
"The writ of quo warranto may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging, but must be granted at the suit of some person either claiming the office or interested therein."
By referring to the above proce:dure, we are not intimating or giving any opinion as to what procedure, or whether any procedure at all, should be adopted in order to determine the pending controversy. We cite the above only to illustrate that the matter presented can very easily be determined by a proper judicial procedure, and that the: rights and claims of the party litigants can be finally and conclusively determined by the court.
In view of the foregoing authorities, I am of the opinion that the duties

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of the State Superintendent of Schools do not require or authorize you to settle disputes involving title to the local office of county school superintendent. The legal question of determining title to public office is a matter which addresses itself to the judiciary, and not to an administrative official of the StatE: government. Since you are not called upon to rule officially upon the question presented, it therefore becomes unnecessary for me as Attorney General to render an official opinion in the premises.
EDUCATION-State School Superintendent Where the title to office of county superintendent of schools is in dispute, the State Superintendent of Schools may make remittances of school funds to the president of the county board of E:ducation, who is properly bonded and who has been designated to receive them by the county board.
December 4, 1945 Dr. M. D. Collins Superintendent of Schools
I am pleased to acknowledge your letter of November 29th, together with a copy of a Resolution passed by the Laurens County Board of Education, which directs you as State Superintendent of Schools to "make all remittances of schools funds or other funds payable to W. L. Lake, President, Board of Education of Laurens County." The Resolution shows that it was unanimously passE:d by the County Board of Education of Laurens County. You request that I advise whether or not you should follow this Resolution, or whether your remittances should be addressed to the County Superintendent of Schools of Laurens County.
Section 32-920 of the Code provides in part as follows: " . . . The State Treasurer shall, upon thE: presentation of the warrants aforesaid, draw his checks for the amount of said warrants in favor of the county superintendent of schools of the several counties, and the State Superintendent of Schools shall immediately transmit said checks to the several county superintendents of schools, who shall properly disburse thE: money so received in payment of the sums set out in the itemized statement aforesaid; ..." While the above provision of law is applicable in cases where the county superintendent of schools is in existence and the title to the office is not involved, it does not apply in instances where the title to the office of county school superintendent is in dispute and thE: matter is pending before the courts of this State. On November 20, 1945, we wrote you an official opinion relating to the question of determining title to the local office of county school superintendent. That opinion cites the applicable statutes and certain decisions of the Supreme Court of this State which clearly hold that title to such office is a judicial, rather than an administrative matter, to be determined by the courts in a proper proceeding. We understand that the parties contesting and claiming title to this office have at the present time instituted legal proceedings in the Superior Court of Laurens County, and that the matter will subsequently be determined by the court. Until the controversy is finally determined by the court, you are not in a

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position to know who is the legally qualified county school superintendent. Until this controversy is properly adjusted, you must look to the county board of education for instructions and advice as to the proper county authority to deal with in school matters.
Section 32-909 of the Am(:nded Code in describing the power and authority of the county board of education, provides:
"... the said boards are invested with the title, care and custody of all schoolhouses or other property belonging to the subdistricts now or hereafter defined, with power to control the same in such manner as they think will best serve the interests of the common schools; ..."
The above statute clearly shows that the Legislature has invested complete pow(:r over school property with the county board of education. All local school property is subject to the power and control of the local board of education. This statute is broad enough to authorize you as Superintendent of Schools to deal with the local board of education in instances where the county school superintendent is suspended, or where the title to the office is in controversy. Section 32-910 of the Code provides in part as follows:
"The county board of education shall constitute a tribunal for hearing and determining any matter of local controversy in referenc(: to the construction or administration of the school law, ..."
The above statute again illustrates the superior power of the county board of education over the administration of school laws.
Section 32-912 of the Code provides in part as follows:
"Th(: county superintendent of schools shall act as secretary of the board, and keep the minutes of their meetings and make a permanent record of the same, and do any other clerical work that they may direct him to do. Said board may suspend the county superintendent of schools for incompetency, wilful neglect of duty, misconduct, immorality or the commission of crime involving moral turpitude, ..."
It should be pointed out in passing that where the county board of education acting pursuant to the above statute suspends the superintendent, in this instance it would likewise be improptr for the State authorities to continue to transact business with a superintendent who was properly under suspension.
From the foregoing authorities, I am of the opinion that where there is no superintendent of county schools, or where the title to that office is in dispute as in the prc,sent case, you, as State Superintendent of Schools, should follow the Resolution unanimously passed by the county board of education and deal directly with the president of the board of education as requested in the said Resolution. I understand that the President of the Board of Education of Laurens County who is the party d(:signated unanimously by the board of education of that county to receive all remittances of school funds, has been properly bonded according to law. It would work an undue hardship on the school teachers and other citizens of the county to hold that all remittances from the State to the Laurens County Board of Education should be held in abeyance until title to the office of county school superintendent is finally determined by the courts. It may take some little time for this question to be adjudicated, and we can readily understand the hardship involved in such a delay.

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While the question presented in your letter is rather unusual, I am of the very definite opinion that the laws of this State contain sufficient authority to authorize you to deal with the President of the Board of Education of Laurens County, who is properly bonded, and who has been properly designated by appropriate resolution of the county board of education until the title to the office of county school superintendent is settled. Paragraph 1 of Section 5 of Article 8 of the new Constitution adds emphasis and force to the statutory laws which we have cited above. This Paragraph provides in part as follows:
"Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a county board of education. . . ."
Under the facts contained herein, you have ample authority to deal with the president of the board of education until such time as the courts finally determine title to the office in controversy.
EDUCATION-State School Superintendent The State Superintendent of Schools should issue a comm1sswn to the party certified by the clerk of the superior court as having been elected a member of the county board of education by the grand jury.
June 5, 1947 Dr. M. D. Collins Superintendent of Schools
Your letter of May 30th states that there is a controversy about issuing a commission to certain persons as members of Emanuel County Board of Education. You submitted for by consideration your file, and from the file it appears that the Grand Jury selected a member from a district which already had a member on the Board, and that the County Board proceeded to elect a person to fill the vacancy on the theory that the election by the Grand Jury was void in that the Grand Jury elected an ineligible person.
Under Section 39-903 of the Code the Grand Jury is prohibited from selecting any two members from the same militia district. From the facts shown it seems that the Grand Jury disregarded this provision of law.
However, I agree with the opinion Judge Yeomans, Attorney General, rendered for you on March 23, 1936 (Opinions of the Attorney General 19351936, page 82) where he held as follows:
"Section 32-905 provides in part that 'Whenever members of a county board are elected or appointed, it shall be the duty of the Clerk of the Superior Court to forward to the State Superintendent of Schools a certified statement of the facts, under the seal of the court, as evidence upon which to issue commissions.'
"No power is given the State Superintendent of Schools to review the selections made by the grand juries of members of county boards of education, and when the State Superintendent of Schools receives a certified statement of the facts under the seal of the court from the Clerk of the Superior Court as to the election or appointment of a member of a county board of education, he is unauthorized to go behind this certificate and receive any evidence as

209
to the disqualifications of the member elected by the: grand jury, or to set aside the appointment. The commission should be issued, and if any one desires to question the right of the person to hold the office, the proper procedure would be by quo warranto."
Therefore, you should issue commission to party certified by Clerk as having been eJected by the Grand Jury and the two parties at interest can, if they wish, settle the question in the courts by quo warranto.
EDUCATION-Teacher Retirement (Unofficial) (1) A county may levy taxes to provide teacher retirement benefits for a county agricultural agent. (2) If a county pays any part of a county agricultural agent's salary, the agent is an employee of the county.
February 19, 1946 Hon. Ellsworth Hall, Jr. County Attorney, Bibb County Macon, Georgia
In your letter of February 8th you requested an expression of our views regarding the legal right of a county to levy a tax to provide: teacher retirement benefits for a county agricultural agent under the teacher retirement system.
Paragraph 2, Section 2, Article 7 of the Constitution of 1945 furnishes the constitutional authority for a county to levy tax for contribution to a pension fund for teachers. The provisions of the Constitution are as follows:
"The powers of taxation may be exercised by the State through the General Assembly and by counties and municipalities, for the purpose of paying pensions and other be:nefits and costs under a teacher retirement system or systems; provided no indebtedness against the State shall ever be created for the purpose herein stated in excess of the taxes lawfully levied each fiscal year under Acts of the General Assembly authorizing hereunder."
The General Assembly at the fifte:en day session struck Section 92-3701 of the Code of 1933 and substituted in lie:u thereof a new section defining the purposes for which county tax may be levied and collected. The substituted section follows the Constitutional provisions outlined in Paragraph 1, Section 4 of Article 7 of the Constitution and adds the following:
"17. To pay pensions and other benefits and cost under a teacher retirement system or syste:ms."
The Act was approved on the 30th day of January, 1946, and is known as Act No. 635.
In your letter you requested that we advise whether or not in our opinion the caption of the teacher retirement act was broad enough to cover the definition of the term "teacher" as it appears in the body of the Act.
The caption contains the words: "to determine membership and conditions of membership in said system", referring to a teacher retirement system. In dete:rmining the membership in the retirement system the General Assembly defined the word "teacher" and provides that any person who was a teacher on January 1, 1942, or becomes a teacher prior to January 1, 1944, shall become a member of the system unless prior to January 1, 1944, the teacher files with

210
the board of trustees a notice that he or she does not want to be a participant in the system. In my opinion the Act defining the teacher and providing for membership is germane to that portion of the: title above quoted, and the title is broad enough to include the provisions defining teacher and providing for membership in the system.
You also requested that we advise whether or not a county agricultural agent is to be considered as an employee of the particular county to which he is assigned. Subparagraph IV of Section I of the Act (Ga. L. 1943, pp. 640670) define:s "employer," and under the definition the State of Georgia, the county or independent board of education, the State Board of Education, the Board of Regents of the University System of Georgia or any other agency of and within the State by which a teacher is paid is an "employer." It would follow that if the county pays any part of the county agent's salary, even though assigned to the county by the Agricultural Extension Service of the University, the county agent would be the e:mployee of the University System and of the county, and under the terms of the Act the University System and the county would both be required to contribute to reserve fund from which teacher retirement benefits are paid. In the definition of "teacher" all nonclerical personnel of the Agricultural Extension Service of the University of Georgia are included and defined as teachers. This nonclerical personnel is composed of the county agent, the home demonstration agent, and the personnel which promotes the 4-H boys and girls activities. They are recognized as teachers by the University System of Georgia and are included in the te:acher retirement system by the Act of the General Assembly.
EDUCATION-Teacher Retirement The faculty of the Academy for the Blind may not receive special treatment unde:r the Teachers' Retirement Act and the State may not continue to pay into the pension fund after age 60 of such faculty member.
December 10, 1946 Hon. J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia
I am pleased to acknowledge your letter of December 4th, in which you state the following:
"Is it legal for us to make an exception in the case of Mrs. Hazlehurst, Blind Academy, to Section 5, Subsection (b) of the Teachers' Retirement Law? In other words, does. the State continue to pay into the Pension fund after age 60 to faculty members, Academy for the Blind? These payments are not made, we understand, to other Public School teachers after age 60."
The Section you refer to, 5 (b)2, of the Acts of 1943, provides in part as follows:
"Allowance on service retire:ment. (2) Upon service retirement a member shall receive a service retirement allowance which shall consist: (a) An annuity which shall be the actual equivalent of his accumulated contributions at the time of his retirement; and (b) a pension equal to the annuity allowable at age 60 computed on the basis of contributions made prior to the attainment of age 60."

211
The provision of law pertinent to your question in relation to the Academy for the Blind is Section 18 (a) of the Acts of 1943, which reads as follows:
"No statute nor regulation as to uniformity of curricula, course of study, text books, period of operation, qualifications or compensation of teachers, nor any other statute or regulation, applicable to other schools, shall apply to the schools herein referred to, as it is declared to be the public policy of this State that on account of the special requirements of care, training, and education, of the blind and of the deaf they shall have that care, training, and education, specially adapted to their needs, and the State Board of Education is authorized to act accordingly." (Ga. L. 1943, p. 231).
The above provision of law relating to the Academy for the Blind does not, in my opinion, alter or amend Section 5 (b) of the Teachers' Retirement Act. A person teaching in the Academy for the Blind would be entitled to the same treatment under the Teachers' Retirement Act as other teachers in the public school system. Since the State does not continue to pay into the pension fund after age 60 of other faculty members of the public school system, it would likewise not make such payments in relation to a teacher of the Academy for the Blind.
The Teachers' Retirement system is a comprehensive Act dealing with the retirement system for aged and incapacitated teachers in the State public schools, and certain other State supported schools. This Act was approved March 19, 1943. The Act amending Section 18 of the Academy for the Blind Act was approved on February 8, 1943. This Act in my opinion did not in any way have the effect of repealing or modifying the latter comprehensive Act relating to the Teachers' Retirement system.
EDUCATION-TEACHER RETIREMENT An employee of the Georgia High School Association may not participate in the Teachers' Retirement System.
March 10, 1947 Hon. J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia
Your letter of February 24th, enclosing a letter from Dr. Collins relating to Sam P. Burke, Executive Secretary of the Georgia High School Association, received. You request that I advise whether or not Mr. Burke is entitled to participate in the Teacher Retirement System as a teacher. From your letter it appears that Mr. Burke is employed by the Georgia High School Association and that he. is not engaged in teaching or in the supervision of teachers. My information is that his association deals more with the athletic programs of the schools and not with the operation of the schools.
Section 32-2901 of the 1945 Cumulative Pocket Part of the Annotated Code provides in part as follows:
"Employer shall mean the State of Georgia, the county or independent board of education, the State Board of Education, the Board of Regents of the University System of Georgia, or any other agency of and within the State by which a teacher is paid."
The same Section of the Code in part defines the word "teacher" as follows:

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"Teacher shall mean any person employed not less than one-half time in the public day schools as a classroom teacher, or in the supervision of the public schools, or any employee of the State Board of Education employed in a teaching or supervisory capacity, or any bona fide teacher or supervisors of teachers employed in any school operated by the State Board of Education ... The word 'teacher' shall include school librarian, and administrative official,; who supE:rvise teachers, and shall include registrars of each unit of the University,. System and shall include Secretary and Treasurer of the Board of Regents. The Board of Trustees shall determine in doubtful cases whether any person is a teacher as defined in this Chapter."
In addition this Section provided that in the event the Georgia Educational Association and any full time employee requested the Board of Trustees to permit the Association as employer and such employee to make contribution that the Trustees would have the right to permit an employee of the Georgia Educational Association to participate as a teacher, but that the State would make no contributions on account of such employment.
I cannot construe the Georgia High School Association to be an agency of the State so as to make the Association an employer as defined by the Teacher Retirement Act. Neither can I construe the employee of such Association as a teacher within the definition given by the Act. The Act did not make any exception for employees of the Georgia High School Association as it did for the employees of the Georgia Educational Association. No doubt employees E>f the Georgia High School Association who give their time to educational work deserve recognition and opportunity to participate in the system as suggested by Dr. Collins, however, I am of the opinion that before they may do so it will be necessary that the Act be amended so as to give the Board of Trustees the right to consider them as teachers and to accept contributions from the Association as an employer.
EDUCATION-Teacher Retirement Teachers employed by employer operating a local retirement fund may not be members of State Teachers' Retirement System, although they are denied participation in the local system.
March 10, 1947 Hon. J. L. Yaden, Executive Secretary Teachers' Retirement System of Georgia
Your letter of February 25th, referring to vocational teachers in Savannah ~nd to Mr. Babcock who is employed as Director of Vocational Education for the City of Atlanta, in the County of Fulton, received. You state that the local retirement system of Chatham County, Fulton County and Atlanta refuse to permit these teachers to participate in their local retirement system and request that I advise whether or not they are entitled to be members and to participate in the State Teacher Retirement System.
I understand that there are eight teachers who are employed by Chatham
County as vocational teachers, and that Mr. Babcock is employed jointly by
Fulton County and the City of Atlanta. There is no question but what they may be classified as teachers, since vocational teachers in other systems of the

213
State have been so classified by the board of trusttoes administering the Teachers' Retirement System.
Under Section 32-2~03 of the 1945 Cumulative Pocket Part of the Annotated Code, it is provided that any person who becomes a teacher afttr January 1, 1944, shall become a member of the Retirement System as a condition of his employment, except as herein otherwise provided. Subparagraphs 3 and 4 contain one of these exceptions. In subparagraph 3 it is provided that a teacher othtorwise eligible shall be classified as a member only while he is in the service of an employer not operating a local retirement system. Subparagraph 4 provides in part as follows:
"The membership of any member shall terminate if he dies ... or if after he becomes a member he is employed by an employer operating a local retirement fund."
It is provided in Section 32-2922 of the 1945 Cumulative Pocket Part of the Annotated Code in part as follows:
"Teachers in the service of an employer operating a local retirement fund shall not be members of the retirement system established in this chapter, and such teachers shall make no contributions to this retiremE:ont system and shall be eligible for pension benefits under this retirement system only as provided in this Section."
You state in your letter that Fulton County, Chatham County and the City of Atlanta each operates a retirement system. Under the provisions of the Teacher Retirement Act to which I have called your attention, persons employed by the political subdivisions which operate an indE:opendent teacher retirement system are not eligible as members in the State system and receive benefits only as provided in the Teacher Retirement Act. I do not deem it necessary, under your letter, to outline the benefits to which a teacher may be entitled under thE:o State system who are employed by boards operating independent retirement systems since they are outlined in Section 32-2922 of the Cumulative Pocket Part of the Annotated Code.
You state that the local systems deny the vocational teachers the right to participate in their local retirement system. It does seem that such teachers should have some means of participating in one or the other of such systems but bE:ocause of the language contained in the State Act I am forced to the conclusion that they can not participate under the State system until the same has been amended by the General Assembly so as to permit their participation.

EDUCATION-Teacher Retirement Members or employees of the Georgia Tech Athletic Association are not

"teachers" entitled to the benefits of the Teachers' Retirement Act.

Hon. J. L. Yaden, Secretary-Treasurer Teachers' RetiremE:ont System of Georgia

April 25, 1947

Your letter of April 22nd received. You requE:ost an opinion as to whether or not members of the Georgia Tech Athletic Association are entitled to membership under the Teachers' Retirement System.

Information in the letter from Agnes Hogan, Secretary to Business Man-

214
ager of the Georgia Tech AthlE:tic Association shows that the members are not paid wholly or partially by the Georgia School of Technology. It is presumed that the Association is set up and established by the Board of Regents of the University System as provided for in Section 32-140 of the Code of 1933. Under said Section of the Code proceeds of athletic contE:sts shall remain with the institution originating the same and shall not be paid into the treasury of this State. All revenue arising from athletic fees is under the control of the Board of Regents, which control may be exercised directly or through the athletic associations or organizations as the Board of RegE:nts may authorize.
To come within the Teachers' Retirement System a person must be a teacher as defined within Paragraph 5 of Section 32-2901 of the Annotated Code of 1933. The teacher must likewise be employed by an employer as is defined in Paragraph 4 of Section 32-2901, Annotated Part of the Code of 1933. The term "employer" is defined as follows:
"Employer shall mean the State of GE:orgia, the county or independent board of education, the State Board of Education, the Board of Regents of the University System of Georgia, or any other agency of and within the Stat(! by which a teacher is paid."
According to the information furnished as stated above, the members of the Georgia Tech Association are not employed or paid by the Board of Regents.
ME:mbers of the Board of Regents are public officers of the State, yet the Regents of the University System of Georgia constitutes a corporation. The Georgia Tech Athletic Association is, as I understand it, also a corporation, and the Association does not, in my opinion, constitute any agency of and within the State employing and paying teachers.
" 'Teacher' shall mean any person employed not less than half time in the public day schools as a classroom teacher, or in the supervision of the public schools, or any employee of the State Board of Education employed in a teaching or supervisory capacity or any bona fide teacher or supervisor of tE:achers employed in any school operated by the State Department of Education, or any teacher or supervisor of teachers employed and paid by the Board of Regents of the University System of Georgia and all non-clerical personnel of the Agricultural Extension Service of the Univusity of Georgia. The word 'teacher' shall include school librarians, and administrative officials who supervise teachers, and shall include registrars of each unit of the University System, and shall include secretary and treasurer of the Board of Regents."
I do not construe the definition of teacher as given above and as stated by the Teachers' Retirement Act to include employees of an athletic association opuated under the control of the Regents in connection with the State Colleges of the University System. Should any employee of the Association perform duties which would entitle such employee to be classified as a teacher it would be the duty of the Board of Trustees to determine in doubtful cases whether any person is a teacher as defined by the Teacher RetirE:ment Act.
The Act provided that members of the Georgia Educational Association upon request should be permitted to make contributions and to come within the Retirement System. This does not include high school associations or athletic associations.
I am, therefore, of thE: opinion that the employees of the Georgia Tech

215
Athletic Association are not entitled to membership under the laws as they now read. Should it be desirable that they should come within the Teachers' Retirement System the Act should be amended so as to permit them to come under the terms of the Act as was provided in the case of m~mbers of the Georgia Educational Association.

EDUCATION-Teacher Retirement A teacher who holds an emergency certificate and who, for that reason, was denied the right to participate in the Teachers' Retirement System, and has not made contributions thereto, but who has taught for two years since January 1, 1945, is eligible for membership in the system and may receive credit for prior service.

Hon. J. L. Yaden, Secretary-Treasurer

April 28, 1947
t

Teachers' Retirement System of Georgia

Your letter of April 22nd received. You refer to House Bill No. 250, Act

239 approved March 27, 1947, amending Subsection 2 of Section 4 of the

Teachers' Retirement Act and request that I advise whether or not a teacher

who holds an emergency certificate and who has been employed by the State

of Georgia for the school years 1944-45, 1945-46, and 1946-47, and who has

not made contributions to the Retirement System, is eligible for prior service

and to become a member of the Teachers' Retirement System.

The last sentence of Paragraph 5 of Section 1 of the Teachers' Retire-

ment System provides as follows:

"The word 'teacher' shall not be deemed to include any emergency or tem-

porary employee."

It is my opinion that the words "em~;rgency" or "temporary employee" re-

late to one teaching in a case of an emergency for a temporary period only.

Even though the person mentioned in your letter holds an emergency certificate,

it appears from your letter that the person has been engaged as a teacher and

has been employed by the State of Georgia as a teacher for three school years.

I am of the opinion that such a teacher could not b~ classified as an emergency

or temporary employee as defined in the sentence above quoted.

Paragraph 1 of Section 3 of the Teachers Retirement Act provides:

"Any person who becomes a teacher after January 1, 1944, shall become a member of the retirement system as a condition of his employm~nt, except as herein otherwise provided."

Paragraph 2 of Section 3 provides in part as follows:

"Any person who was a teacher on January 1, 1943, or becomes a teacher prior to January 1, 1944, shall become a member unless prior to January 1, 1944, he files ... notice of his election not to be included in the membership of the system and a duly execut~d waiver of all present and prospective benefits which would otherwise accrue to him by participating in the system, ...."

I do not presume from your letter that the person mentioned elected to stay out of the Retirement System. I construe your letter to mean that the teacher did not make the contribution b~cause the teacher was classified as

216
an emergency or temporary employee. If the teacher elected not to become a member, such a teacher would be entitled to be admitted to membership, but without credit for services rendered after July 1, 1943, and prior to the time of becoming a member. If the teacher was denied the right to participate because she was classified as an emergency or temporary employee and did not elect to stay without the System, I think that because of House Bill No. 250 such a person would be entitled to become a member at this time and would be entitled to credit for services rendered, even though such a member did not actually contribute as required by the Act. I reached this conclusion because of the language added by House Bill No. 250. House Bill No. 250 struck from Paragraph 2 of Section 4 the following lan~age:
"Under such rules and regulations as the Board of Trustees shall adopt, each member who was a teacher at any time during the calendar year 1943 shall file a detailed statement of all services as a teacher rendered by him prior tto July 1, 1943, for which he claims credit."
In lieu thereof House Bill No. 250 added the following language: "Under such rules and regulations as the Board of Trustees shall adopt, each member who was a teacher at any time during the calendar year 1943, or in lieu of having taught in 1943, teaches two out of three years between January 1, 1940 and January 1, 1943 or has taught two years from January 1, 1945 to January 1, 1948, shall file a detailed statement of all service as a teacher rendered by him prior to July 1, 1943, for which he claims credit."
Paragraph 1 of Section 4 directs the Board of Trustees to fix and determinE: by appropriate rules and regulations how much service is required in a calendar year.
a: Under the amendment the teacher has the right to file claim for prior
services on three conditions: first, that the member was a teacher at any time during the calendar year of 1943; second, that the member taught school two out of three years between January 1, 1940 and January 1, 1943; or third, the member has taught two yE:ars from January 1, 1945 to January 1, 1948. The person mentioned in your letter, according to your letter, has taught two years since January 1, 1945. I construe the Act as being an amendment offered with the intention to include persons who have taught two years since January 1, 1945.
EDUCATION-Tea=her Retirement A teacher who has reached the age of 60 and who taught in the State school system for 35 years and retired before the Teachers' Retirement Act became effective, is entitled to the benefits of the Act.
May 5, 1947 Hon. J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia
Your letter of April 30th received. You request that I construe Act No. 360, approved March 25, 1947, and advise whether or not teachers who had taught 35 years or over, who were not teaching at the time they reached their sixtieth birthday and who were not teaching at the time the Teacher Retirement

217
Act was approved in 1943 are eligible for membership under the Teacher Retirement Act.
Act No. 360, approved March 25, 1947, amended Paragraph 2 of Section 3 of the Teacher Retirement Act and added thereto a proviso which reads as follows:
"Provided, that any teacher now in life, who has reached the age of 60, who has taught in the common schools of the State, operated by the State Department of Education, or any of the State educational institutions financed by the State of Georgia, for a period of 35 years, and who retired from service in such schools or educational institutions prior to the .time this Act became effective, shall be deemed a member of the retirement system. Benefits to be paid to such a member shall be computed on the average earnings received by such a member for the last five years of actual services rendered in such schools and educational institutions."
In substance the proyiso provides that any teacher now in life, who has reached the age of 60, who has taught in the Georgia schools for 35 years and who retired from service prior to the time the Teacher Retirement Act became effective shall be deemed a member of the Retirement System. The benefits to be paid such a member shall be computed on the average earnings received by such a member for the last five years of actual service rendered in the schools operated by the State or its political subdivisions.
I construe this amendment to include under the Teacher Retirement System all persons now in life who are passed 60 years of age, who taught 35 years in the public schools and who retired from service prior to the adoption of the Teacher Retirement Act.
EDUCATION-Teacher Retirement Teachers in the Georgia Evening College may participate in the Teachers' Retirement System. October 14, 1947
Hon. J. L. Yaden, Executive Secretary Teachers' Retirement System of Georgia
In your letter of October 7 you request that I advise whether or not in my opinion teachers in the Georgia Evening College should be classified as teachers and members of the Georgia Teachers Retirement System.
Section 32-2901, Cumulative Pocket Part of the Code, defines "employer" and "te.tcher". "Employer" means the. State of Georgia, the county or independent board of education, State Board of Education, Board of Regents, or other agency of the State by which a teacher is paid.
The Georgia Evening College operates by virtue of funds allotted by the Board of Regents, which constitutes a State agency.
Among other definitions of teachers we find by said section that the
word "teacher" means * * * "any teacher or supervisors of teachers em-
ployed and paid by the Board of Regents of the University System of Georgia." I am of the opinion that teachers employed in the Georgia Evening Col-
lege stand in the same status as teachers of the University System, and if the teachers of the University System participate in the Georgia Teachers Retirement program, the teachers of the Georgia Evening College would be entitled to participate.

218
EDUCATION-Teacher Retirement Teachers employed by private or denominational schools are not entitled to participate in the Teachers' Retirement System. October 15, 1947
Hon. J. L. Yaden, Executive Secretary Teachers' R~::tirement System of Georgia
In your letter of October 4 you request that I advise whether or not a t~::acher who is employed by a private or denominational school and receives a larger part, or all, of his salary from private or denominational funds is entitled to be a member in the Teachers' Retirement System of Georgia.
Section 32-2901 of the Cumulative Pocket Part of the Code defines the word "teacher", "public school" and "employer". Teachers who b~::come a teacher under the terms of the Act become members of the System and are allowed to participate therein. "Employer" means the State, county, or the independent board of education, the State Board of Education, the Board of Regents or any other agency of and within th~:: State by which a teacher is paid. A teacher is a person employed not less than one-half time in the public day schools as a classroom teacher, or in the supervision of the public schools, and "public school" under the Act shall mean any day school operated within the State under the authority and supervision of the duly elected, or appointed county or independent board of education.
Of course, teachers employed by a private or denominational school, who receive their pay from private sources can not come within the classification of teachers and the private school is not an employer.
I am, therefore, of the opinion that teachers paid and employed by private or denominational schools are not entitled to participate in the Georgia Teachers' Retirement Fund.

EDUCATION-Teacher Retirement Teachers employed by a school operat~::d as a private corporation, which

is not conducted under the supervision of a county or independent board

of education, may not participate in the Teachers' Retirement System,

although the school accepts all children from an independent school dis-

trict and receives funds from the school district and from the county.

Hon. J. L. Yaden, Executive Secretary

Nov~::mber 4, 1947

Teachers' Retirement System of Georgia In your letter of October 25 you requested that I review my opinion to

you of October 15, dealing with the question of whether or not teachers employed by private or denominational schools could participate in the teacher

retirement fund.

In your letter of October 4 you based your question not upon any particular school but upon private schools generally. In your letter of October 23

you base your request for review of my former opinion on the theory that

the same affects Tallulah Falls School. With your letter of October 23 you

furnish a copy of a letter from Mr. Frank Taylor, Superintendent of Tallulah Falls Schools, in which he outlines certain facts not considered in my former

opinion.

219
Mr. Taylor states that eight teachers are paid from State funds through Habersham County and the other five teachers are paid by the Board of Trustees of Tallulah Falls School with funds that are paid into the treasury by the local district board of education of Tallulah Falls Indeptndent School. Tallulah Falls School is operated as a private corporation. The independent system pays them one lump sum annually, an amount agreed upon by the officers of the independent system and the corporation.
In return for the payment to the corporation, Tallulah Falls School accepts all children from the independent district. Mr. Taylor thinks that under the above stated facts that Tallulah Falls School is a public school in every sense. I gather from Mr. Taylor's letter that the teachers are all employed by the corporation, and art not employed by the county or the independent system. He does not give any facts which would show whether or not the school is operated under the supervision and control of either the superintendent of schools for the county or superintendent of schools for the independent system. I, therefore, presume Tallulah Falls School being a corporation, does not operate under the supervision of either the county school suptrintendent or the superintendent of an independent system constituting a part of the school system of the State.
Subparagraph 3 of Section 32-2901, Cumulative Pocket Part of the Code, defines public school which comes under the Teacher Retirement System. It is defined as follows:
"Public school shall mean any school conducted within the State under the authority and supervision of the duly elected or appointed county or independent board of education."
Paragraph 4 of the same Code Section definE:s the word "employer" as follows:
"Employer shall mean the State of Georgia, the county or independent board of education, the State Board of Education, the Board of Regents of the University System of Georgia, or any other agE:ncy of the and within the State by which a teacher is paid."
I do not think that it could be contended that Tallulah Falls School is a public school as defined by the Act creating Teacher Retirement System. Neither do I think that it can be contended that Tallulah Falls School is an employer as defined under the Teacher Retirement System. Under the definition of an employer, the employer must be onE: of the divisions of the State or an agency of and within the State.
Said Code Section also defines the word "teacher", and insofar as it deals with public schools the word "teacher" shall mean any person employed not less than one-half time in the public schools as a classroom teacher. I am of the opinion that a public school must be a school as defined by the Act; that is, one conducted within the State under the authority and supervision of a duly elected or appointed county or independent board of education.
Mr. Taylor does not contend that the State Board of Education employs teachers for Tallulah Falls School or that they come within the Teacher Retirement System as a member except from the fact he contends they teach in a public school. Any person who becomes a teacher becomes a member of the RE:tirement System, and in my opinion the teacher must be such a teacher as is defined by Subparagraph 5 of Section 32-2901.

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If I have misconstrued the facts, and if the teachers are employed by the county board of education, or the independent system of Tallulah Falls, then such teacher would be a member of the Retirement System and would have the right to participate therein. It is provided in Subparagraph 5 of said Code Section that the Board of Trustees shall determine in doubtful cases whether any person is a teacher as defin:d by the act. If the facts are different from my construction, and create a doubtful case, it would be the duty of the board of trustees to determine whether or not the person is a teacher as defined by the Act.
I have consider:d certain rulings made by the Attorney General of Tennessee construing the Tennessee Act. The Tennessee Act is very similar to the Act creating the Georgia Retirement System. The Attorney General of Tennessee emphasizes that the controlling factor as to whether or not a person is a member of the System is wh:ther or not a person is employed by an employer as defined by the Tennessee Act. The source from whence the money is derived to pay the teacher is not the controlling factor.
In my opinion there are two controlling factors under the Georgia statute. I think that one of the controlling factors is that the employer must be one defined by the Act creating the Retirement System, and I think that in order to be a member of the System the person must be a teacher as defined by the . Act and a teacher who relies upon teaching in a public school as a classroom teacher must show that the school is such a school as defined by the Georgia Act.
Therefore, I must adhere to the opinion rendered on October 15 to the :ffect that teachers employed by a private or denominational school do not come within the classification as members of the System and cannot participate in the retirement fund.
EDUCATION-Transpor<:ation of pupils (Unofficial) A city board of education is not liable for an injury received by a pupil in a school bus accident while being transported to a school athletic contest.
November 29, 1945 Hon. Hamilton C. Arnall Newnan, Georgia
Your letter of November 27th received. You state that you are a member of the City Board of Education and that at various times the Board of Education sends the school band in a school bus with the athletic teams and you request that I advise if there would be any liability on the Board of Education if any of the children should be hurt in an accident where the school bus was involved.
Hon. Zach Arnold, State Auditor, propounded to Governor Arnall, while he was serving as Attorney General of the State, the following qu:stion:
"Are County Boards of Education authorized to pay damage for injuries by school buses?"
Governor Arnall in rendering his opinion gave the following answer: "Our courts have held that in the operation of school buses for the trans-

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portation of teachers and pupils to and from the public schools of this State, the county boards are acting in a governmental capacity, and, the:refore, are not liable for any damages which may be sustained by any person as a result of such operations. See McLeod v. Pulaski County, et al., 50 Ga. App. 356; Ayers v. Board of Education of Hart County, 56 Ga. App. 146; Roberts v. Baker, 57 Ga. App. 733. Since there is no liability on the part of any county board of education for damages for injuries sustained by persons as a re:sult of the operation of school buses as aforesaid, the county board of education of any given county would not be legally authorized to voluntarily pay damages to a party sustaining injuries and damages under such .circumstances."
Opinions of 'the Attorney General, 1939-41, pp. 113-115. In the case of Ayers v. Board of Educacion of Hart County, supra, the court held that a petition to recover damages for the death of plaintiff's son, alleged to have been kille:d by the negligence of a driver employed by the county board of education to transport pupils to and from schools, was properly dismissed on demurrer because the county board of education was not a body corporate with authority to be sued. A county cannot be sued on account of tort except by express legislative: permission. A city operates under a different rule. Cities or municipal corporations are not liable for failure to perform, or for errors in performing legislative or judicial powers. They are liable for neglect to perform, or for improper or unskillful performance of ministerial duties. See Section 69-301, Code of 1933. Municipal corporations are not liable for torts of its officers engaged in the: discharge of the duties imposed on them by law. See Section 69-307, Code of 1933. The question of liability or no liability would turn on facts of whether the corporation was, or was not, engaged in governmental function at the time of the injury. See Mayor, et:. v. Waters, 33 Ga. App. 288. Davis v. City of Rome, 23 Ga. App. 188. Roberts v. Mayor, etc., 54 Ga. App. 375. Ci::y of Atlanta v. Garner, 56 Ga. App. 435. Love v. Ci~y of Atlanta, 95 Ga. 129. Section 4 of an Act of the General Assembly, approved December 27, 1886 (Ga. L. 1886, pp. 312-317) confides the control and management of Newnan schools, an independent system, to the City Board of Education. They have general ove:rsight and management of the schools and may do such act as may promote an efficient system of education in the district. I am of the opinion that the use of a school bus for transporting a school band and school pupils of an independent school system to athletic contests participated in by the schools of the district would be governmental operation and that the rule referred to by Governor Arnall would apply and there would be no liability. However, this is a question you should submit to your City Attorney, who can give you an official ruling.

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EDUCATION-Transportation of Pupils (Unofficial) A county board of education may not E:xpend public school funds to transport children to schools other than those operated by the public -school system.
April 4, 1947 Hon. Wallace Miller, President Bibb County Board of Education Macon, Georgia
Your letter of April 1st, enclosing a letter addressed to the county board of education by William R. Burke, received. Mr. Burke is contending that the school busses operated by the county board of education for transporting school children should pick up and transport his children to private schools operated by the Catholic Church, and you request an unofficial opinion on the question of whether or not thE: county board is obligated to trans)!lort children to schools other than the common schools of the State.
Paragraph 14, Section 1, Article 1 of the Constitution (Code Section 2-114, Cumulative Pocket Part Annotated Code) provides as follows:
"No money shall ever be taken from the public Treasury, directly or indirectly, in aid of any church, sect, or denomination of religionists, or of any sectarian institution."
The Supreme Court of the State in the case of Bennett v. City of LaGrange, 153, Ga. 428, ruled that this provision of the Constitution would be violated where the city withdrew from its Treasury under contract with the Salvation Army, money to provide for charitable work for the citizens of the city.
Should the county board of education transport children from their homes to schools operated by any religious organization, where the cost of such transportation is paid from funds raised by taxation and lodged in the Treasury of the State or its political subdivisions, such an act would amount to withdrawing from the TrE:asury public funds to directly or indirectly aid such religious denomination in carrying on its school activities, and would thus, in a way, aid the religious dE:nomination in violation of the constitutional provision.
In addition to the constitutional provision which prohibits public money from being used in support of a religious denomination, I call your attention to Section 32-919 of the Code of 1933 which provides as follows:
"Whenever the county board of education or local district trustees deem it for the best interest of the school, they shall have the right to provide mE:ans for the transportation of the pupils and teachers to and from said school. No school trustee, teacher or county superintendent of schools shall be financially interested in the transportation of pupils."
The county boards of education arE: vested with the control and management of the county school district set up by statute for the purpose of administering the common schools of the State. Under the Section of the Code which I have just quoted, the county board of education is given the power to provide means for the transportation of pupils to and from common schools which are maintained and operated by the State or county. This Section does not, in my opinion, authorize the county board of education to spend public funds in transporting children to any private school, whether it be operated

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by a religious sE:ct, or whether it be operated by private individuals. The public school fund can not be spent for anything except school purposes. See Burke v. Wheeler County, 54 Ga. App. 81 (.4).
Under the Act to equalize educational opportunities the General Assembly has defined public schools and the units of administration. Section 32-602 and 32-604, 1945 Cumulative Pocket Part, Annotated Code.
Section 32-614 of the Cumulative Pocket Part of the Annotated Code sets forth the things for which public school funds and appropriations may be used. Among the purposes statE:d by this Section the funds may be used "to
pay to each local unit of administration, * *' * for the purpose of meeting
local administrative expenses, the cost of operating and maintaining school plants, meeting fixed charges, the expense of auxiliary agencies, the expenses
of transportation, and other administrative expenses, * * *."
Under my construction of this part of the Act to equalize educational opportunities public funds can b~ used for the purpose of maintaining and carrying on the common schools operated by the State and its subdivisions, and thE: expenses of transportation deals only with the expense of transporting to and from such public common schools.
I do not construe the decision in the case of Everson v. Board of Education, Advance Sheets (L. Ed.) Vol. 91, No. 7, page 472 as being controlling or being applicable to the Georgia Constitution and statutes. As I construe that case the attack was made upon an act which permitted the State to reimburse parents the cost of transporting children to any and all schools where transportation was had by regular busE:s operated by the public transportation system. ThE: transportation system operated by the common schools of Georgia is not and can not be operated as a public transportation system. It can only be operated in connection with the common schools of the State.
I am, therefore, of the unofficial opinion that the county board of education would be unauthorized to transport children to any school other than the schools operated by the public school system of the State.
EDUCATION-Transportation of Pupils A decision of a county board of education regarding the right of children in one county to attend a school in another county which is nearer their homes may be appealE:d to the State Board of Education.
October 6, 1947 Dr. M. D. Collins State Superintendent of Schools
Your letter of ,September 24th received. You request that I consider Code Section 32-938, as amended by the 1946 Act and advise whether or not the decision of the county board of education is appealable to the State Board of Education where the same involves the question of school children of onE: county attending a school of another when nearer to their homes.
Section 32-938 of the Code as amended provides as follows: "In special cases to meet the demand of convenience, children residing in one county may by express permission of the county board of E:ducation attend the common school of another county, and when a common school is located

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near a county line, children from an adjoining county shall be permitted to attend the school: Provided, such children reside near such schools or said school is more accessible to the residence of such children than any public school in the county of their residence. In such cases the teachers shall report se:parately the pupils from each county, but make the reports to the superintendent of schools of the county in which the school is located, and with which superintendent the teacher shall contract and from whom she shall receive her pay; but such superintendent shall report to the superintendent of the other county, and shall be reimbursed by him for the proportionate amounts paid for maintenance of said school in the ratio of the attendance upon county line schools is under the authority and direction of the superintendents concerned representing their respective boards, and provisions shall be made for such children just as for others. The word 'near' as used herein shall mean within two miles of the school of the adjoining county, measured by the shortest route by public road. When the county officials fail to arrange or contract for the attendance of such children, as aforesaid, the parents of such children shall have the right, by mandamus, to compe:l the county Board of Education of the county of their residence to make such a contract, or to appeal to the State Board of Education. The decision of the State Board of Education shall be final and binding on the local board."
The last paragraph was added by Act approved February 1, 1946, (Ga. L. 1946, pp. 206, 216). The added paragraph described what the General Assembly intended for the word "near" to mean, and it provided that when the county officials failed to arrange: or contract for attendance of such children that the parents of such children shall have the right by mandamus to compel the county board of education of the county of their residence to make a contract, or to appeal the same to the State Board of Education. When appealed to the State Board of Education the Act provides that the decision of the State Board shall be final and binding on the local Board.
I am of the opinion that the:- question can be appealed by the parents of the children affected to the State Board of Education and that the State Board of Education shall have the right to enter a final and binding order as against the local board. On the other hand, if the officials failed to carry out the terms of this section and contract to provide that the children living near a school in one county can attend a school in another county, that the parents, if they see fit, can compel the county board of education to make a contract so that the children may be permitted to attend the nearest school.
EDUCATION-Tuition (1) No tuition may be charged for the attendance of children between the ages of 6 and 18 residing in the: districts in which the schools are located. (2) Residence is a question of fact for administrative determination by the school authorities.
September 13, 1946 Dr. M. D. Collins State Superintendent of Schools
Your letter of September 9, referred to me for attention letter from Dr. B. M. Grier, Superintendent of Athens Schools, received. Dr. Grie:r has re-

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quested that we construe Section 32-937 of the Code of 1933 as amended in 1945 and advise just when tuition may be collected from a person desiring to attend schools.
Paragraph 1, Section 1, Article 8 of the Constitution of 1945 provides in substance that it is a primary obligation of the State to furnish an adequate E:ducation for the citizens of the State by taxation. Paragraph 1, Section 5 of Article 8 of the Constitution of 1945 declares that the county, exclusive of any independent school system now in existence, shall compose one school district and be confined to the control and management of the County Board of Education. Under paragraph 1, Section 7, Article 8 of the Constitution, authority is granted to municipal corporations to maintain existing independent school systems, and to support the same as authorized by special or gen~::ral law. Under paragraph 1, Section 9 of Article 8, the County Board of Education and independent school systems may contract with each other for the education, transportation and care of pupils.
Section 32-937 of the 1945 cumulative pocket part of the annotated Code provides in part as follows:
"Admission to all common schools shall b~:: gratuitous to all children between the ages of six and 18 years residing in the districts in which the schools 'are located... "
Our Courts, by many decisions, have recognized the distinction between legal and actual residence. A person may be a legal resident of one place and an actual resident of another. He may abide in one State or country without surrendering his legal residence in anoth~::r if he so desires. See Hardeman v. Hardeman, 179 Ga. 34 (7).
There is also a distinction between domicile and residence. Under Section 79-406 of the Code, it is provided:
"The domicile of a pE:rson sui juris may be changed by an actual change of residence with the avowed intention of remaining. A declaration of an intention to change the domicile is ineffectual for that purpose until some act is done in execution of the intention."
In the case of Worsham v. Ligon, 144 Ga. 707, it was said: "Residence and domicile are not synonymous and convertible terms. In order to change his domicile a person must actually remove to another plac~:: with a present intention of remaining there as his place of domicile, or, having removed to the new place, avow his intention of remaining there as his place of domicile... " Judge Russell in th~:: case of Bush v. The State, 10 Ga. App. 544, said:
"Loss of citizenship does not result from a .change of residence not intended to be permanent .... There must be either the tacit or the explicit intention to change one's domicile before there is a change of legal residence."
From the above cited decisions and statut~::s, it clearly appears that the question of domicile or residence is one based upon facts and intentions. A question of residence or domicile as defined in the School Act is an administrative question to be decided by the school authorities in each individual case. If the party resides within the county and school district and is between the ages of 6 and 18, the county authorities should not have the right to charge any tuition or fee because of the attendance of such a person in the county schools. If such a party is a resident of an independent school system, where the inde-

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pendent system is finance:d by tax levied by the system and by State funds, if the person comes within the age defined by the statute, the authorities of the independent system would not have the right to charge any tuition or fee for teaching such a person.
EDUCATION-University System of Georgia All funds under the control of the Board of Regents belong to the State and a depository should be required to giv~:: security where the total State deposits exceed the $5000 maximum insured by the FDIC.
October 17, 1945 Mr. W. Wilson Noyes, Treasurer Regents of the University System of Georgia
Your letter of September 28th addressed to Hon. T. Grady Head has been referred to me for answer. You requested my opinion of the: interpretation of the law of Georgia regarding the title to funds held by the Regents, and particularly as to the amount of insurance protecting the State funds under FDIC Act.
Under the Act of 1935, Section 32-138 of the Code of 1933, the: Regents of the University System of Georgia is a corporation and is declared to be a governmental agency of the State and all property held by the corporation is declared to be the property of the State and subject to all of the limitations and restrictions imposed upon other property of the State of Ge:orgia by the Constitution and laws of the State. The members of the Board of Regents are declared to be public officers of the State and subject, in all their actions as such, to the limitations and restrictions imposed by the Constitution and laws of the State upon other public officers.
All appropriations made by the General Assembly are paid to the Regents in a lump sum, with the powe:r and authority in the Regents to allocate and distribute the same among the different branches of the University System which are under their control. Moneys appropriated by the General Assembly or received by the Board of Regents from any source for the use and benefit of anyone of the institutions, shall not be used except for the bene:fit of the particular institution unless otherwise directed by the General Assembly.
Sections 32-116 and 32-117, Code of 1933. Section 32-119 of the Code provides that the title to all real, personal, and mixed property of whatever nature of the institutions under the control of the Regents is vested in the Board of Regents, to be held by the. Board and used for the benefit of the: institutions entitled thereto.
I am of the opinion that all funds deposited by the Board of Regents are funds of the State of Georgia, even though they may be deposited for the use of the differe:nt institutions under the control of the Board of Regents. Under the Federal Reserve Act (Title 12 USC, Section 264) insured deposits means the net amount due to any depositor for deposits in an insured bank less any part thereof which is in excess of $5,000.00. All deposits in the same insured bank maintained by, or for the benefit of, the depositor in the same right and in the same capacity, irrespective of whether such deposits are containe:d in one or in more accounts, must be added together and the insurance

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coverage, to the statutory maximum of $5000.00 will be appli:d to the aggregate of such deposits. Under the provisions of the Act relating to the Board of Regents and of the Federal Reserve Act, I am of the opinion that the Board of Regents would only be insured for their deposits in the amount of $5000.00 for each insured bank where such funds are deposited. In dealing with banks where you have State funds deposit:d, even though deposited in separate accounts, you should deal with same as being insured for $5000.00 only, and should require the bank to make proper security to cover the deposits of the State amounting to a larger sum than $5000.00.
EDUCATION-University System of Georgia ( 1) The Board of Regents may construct buildings without advertising for bids wher: no Federal funds are involved. (2) Where the Board of Regents advertises for bids, it should not prevent any contractor from bidding, although it may reserve the right to reject bids from persons not qualified to do the work.
November 21, 1945 Hon. L. R. Siebert, Secretary Regents of the University System of Georgia
Your letter of November lOth received. You request that I give an opinion on three questions. The questions will b: stated and answers given in the order set forth in your letter.
Question One. Can the Board of Regents qualify bidders for the construction of buildings in the University System.
In your letter you state that you mean by the word "qualify" to limit the bidding to those contractors whose ability to construct good buildings is well known to the public. Th: Board of Regents has a very broad power and may construct buildings without submitting the project for bids by the public. I am of the opinion, however, that if they elect to let such contracts by public bidding that Section 23-1710 of the Code of 1933 would apply. This Section is as follows:
"Whenever public work for the State, or any county thereof, is to be let out by bidding, no person shall, by himself or otherwise, prevent, or attempt to prevent, by any means whatever, competition in such bidding. No person who desires to procure such work for himself or anoth:r shall, by any means whatever, prevent, or endeavor to prevent, any one from making a bid therefor, nor shall such person so desiring the work procure or induce another to withdraw a bid for the work."
Should the Board decide to contract by advertising for bids the Board, in my opinion, should receive bids from all contractors who might decide to submit a bid for the contract. However, the advutisement requesting public bids should contain a statement to the effect that the Board reserves the right to reject any and all bids, under which reservation the Board would be permitted to select a contractor known to be able and qualified to construct good buildings.
Question Two. Does the Board of Regents have to advHtise for the construction of buildings where no federal funds are involved?
The Board of Regents is a successor to the Trustees of the University Sys-

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tern of Georgia, a former corporation created by the General Assembly. The corporation known as Trustees of the University SystE:m of Georgia was empowered to hold and acquire real and personal estate and was given power to lease and otherwise manage the same for the good of the University. See Section 1364, Code of 1910. The Trustees were given a power defined as follows:
"To exercise any power usually granted to such corporation, necessary to its usefulness, and not in conflict with the Constitution and laws."
See Section 1379 (9), Code of 1910. I have referred to the corporation known as thE: Trustees of the University System, and to its power, because Section 32-112 of the Code of 1933 vest all of the powers of the Trustees in the Board of Regents.
Under Section 32-101, Code of 1933, the Board of Regents is constituted a corporation. Section 32-121 of the Code of 1933 defines the powers and duties of the Regents, and under this section the Board of Regents is authorized to exercise any power usually granted to such corporation, necessary to its usefulness, which is not in conflict with the laws of this State. The Act creating the Board of Regents of thE: University System of Georgia was amended in 1935 and the Regents of the University System of Georgia was declared to be a governmental agency of the State. The members of the Board of Regents were declared to be public officers of the State and subject, in all their acts as such, to all the limitations and restrictions imposed by the Constitution and laws of the State upon other public officers. All property held by the corporation was declarE:d to be the property of the State and subject to the limitations and restrictions imposed upon other property of the State. See Section 32-138, Code of 1933.
The powers thus lodged with the Board of Regents are very broad and comprehensive. I have made a careful review of the A,.cts of the General Assembly referring to the Board of Regents and I have been unable to find any legislative direction requiring the Board of RE:gents to advertise for or require public bidding for contracts for buildings and improvements to be constructed by them. Since the members of the Board are public officers and their acts are subject to the limitations and restrictions imposed upon other public officers, I have likewise reviE:wed the laws relating to the duties of general officers to see whether or not they would be required to submit proposed contracts for improvements for bidding by the public. I have been unable to find any law that would require other public officers, as a general rule, to submit such proposals to the public for bidding.
It is, therefore, my conclusion that the Board has the authority to construct buildings without advertising for bids where no federal funds are involved.
Question Three. May the Board of Regents select one contractor and sign a contract with him without advE:rtising for bids?
I am of the opinion that this question is fully answered in my answer to question two. I am of the opinion that the Board of Regents has authority and power to enter into contract for improvement under such terms that the Board thinks advisable and to the best interest of the University System.
The Board of Regents may at its discretion select a contractor and sign a contract with him, or it may at its discretion submit the proposed project

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to selected contractors without public bidding and sign a contract with anyone of the contractors without advertising for bids.
Before incurring any obligation and making payment thereof the proposE;d obligation or payment should be included in the Budget and should have approval of the Budget Commission as is required by Section 62 of the General Appropriation Act approved January 29, 1943, (Ga. L. 1945, pp. 84-96).
EDUCATION-University System of Georgia
A person may hold office as a Regent of the University System and as a lllE;mber of the General Assembly at the same time.
September 6, 1946 Hon. Ellis Arnall Governor of Georgia
I am pleased to acknowledge your lettE;r of September 5, in which you state the following:
"I desire your official opmwn on the following question: "Hon. W. S. Morris of Augusta is a Regent of the University System of Georgia. He was recently nominated for a seat in the House of RepresE;ntatives from Richmond County, will be elected in November, and will take office in January, 1947. Will it be necessary for him to resign as a Regent in order to become a member of the General Assembly? Or will it be necessary for him to resign as a membtr of the General Assembly in order to serve as a Regent? Can he serve in both capacities? Your question arises by virtue of Article 3, Section 4, Paragraph 6 of the Constitution, which provides in part as follows: "No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State ... shall have a seat in either House." Under the above constitutional provision it becomes necessary to determine whether or not a member of the Board of Regents holds an office or appointment having any emolument or compensation annexed thereto. In order to determine this issue, we must examine Code Section 32-111, which relates to the per diem of members of the Board of Regents. This provision of law provides: "Per diem of members. No compensation.-The mE;mbers of the' Board shall each receive the sum of $7 for each day of actual attendance at the meetings of the Board or on tours of inspection, in lieu of expenses incurred in connection therewith, and actual cost of transportation to and from the place of meeting or place of visits and inspE;ctions at the respective institutions by the nearest practicable route from their respective homes, such expenses and mileage to be paid by the State Treasurer out of the funds of the State by executive warrant, on presentation of vouchers by the members of the Board, approved by the chairman and signed by the SE;Cretary. The members of the
Board shall receive no emolument or compensation for their services as such
members."-(Emphasis supplied). The above Code Section, in my judgment, clearly shows that the $7 a day
per diem is to be paid "in lieu of expenses incurred" in connection with the performance of these duties. In addition to such allowance in lieu of expensE;s,

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cost of actual transportation is allowed, but there is no sustenance or other expense allowed except this blanket allowance of $7 per day. It would se(,m very clearly that if the statute went no further it would be reasonable to hold that the Legislature intended to pay the members of the Board of R(,gents merely an expense allowance, and not grant to them any compensation or emolument for their services. However, the Code Section does not stop here, but contains another sentence which can leave no doubt about the legislative intendment on this matter. The last sentence of the statute provides:
"The members of the Board shall receive no emolument or compensation for th(,ir services as such members."
The above provision of law makes it very clear and explicit that the office of a member of the Board of Regents is not to be construed as an office having any emolument or compensation annexed thereto.
The cardinal rule of construction uniformly applied by the courts in the interpretation of all statutes is that of ascertaining and giving effect to the legislative intent.
"In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy."
See Code Section 102-102 (9). In Neal v. Moultrie, 12 Ga. 104, at 110, the Court held: "If the Legislature does plainly and distinctly declare its intention, the Act is not open to construction. It needs and can receive none. It stands selfinterpreted and courts have nothing to do but to (,nforce it." To the same effect, see Ga. Casualty Co. v. Jones, 156 Ga. 666. It is an elementary principle of law that the General Assembly has the authority to construe its own acts and to define terms used in its statutes. This rule is stated in 59 C.J.S. 498, as follows: "The Legislature may define certain words used in the statute, or declare in the body of the act the construction to be plac(,d thereon, and the court is bound by such definition or construction and will apply it, although otherwise the language would have been construed to mean a different thing." From the above provisions of law, I am of the very definite opinion that a member of the Board of Regents does not hold an office or appointment having any emolument or compensation annexed thereto, within the purview of the Constitution and laws of this State. It is, therefore, my considered judgment that Honorable W. S. Morris may serve as a member of the Board of Regents and at the same time serve as a member of the General Assembly; provided, he is otherwise qualified to serve in these capacities. This opinion is in complete harmony with an official opinion rendered by the late M. J. Yeomans, while serving as Attorney General, under date of November 23, 1933. (See Opinions of the Attorney General of Georgia from Jan. 1, 1933, to December 31, 1934, pp. 312-319.) Judge Yeomans, in this opinion, went into great detail in holding that a member of the General Assembly was eligible for appointment to the Board of Control, as provided for by the Reorganization Act of 1931. It is very intE:resting to note that Section 35 of the Reorganization Act (Section 35-110 of the Code), which provides for the per diem and mileage of the members of the Board of Control, is substan-
" tially identical with Section 32-11, supra, now under consideration. After a

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very lengthy and minute consideration of this question, Judge Yeomans concludes as follows:
"I am of thE: firm conviction that under the law there is no legal emolument annexed to the membership on the Board of Control and am, therefore, compelled to hold that the members of the General Assembly are not ineligible to be members of the Board of Control."

EDUCATION-University System of Georgia The Regents of the University System of Georgia is.a distinct corporate entity under the control of the Board of Regents and rriay issue revenue bonds that are not obligations of the State.

Ron. Ellis Arnall Governor of Georgia

October 18, 1946

I am pleased to acknowledge your letter of October 11th, together with a letter from Ron. B. E. Thrasher, Jr., State Auditor. You desire an opinion as to the legality of certain revenue bonds issued by the State Board of Regents. Specifically, you ask the following questions:
"Are these revenue bonds issued by the State Board of Regents legal obligations of the State and should they b: listed as State obligations: Are they legal obligations of the Board of Regents? Are they authorized by the Constitution and laws of Georgia? Is tho power of the Regents to issue selfliquidating bonds unlimited?"
The Supreme Court of Georgia on July 28, 1934, in the case of State of Georgia v. Regents of the University System of Georgia, 179 Ga. 210, passed on the quE:stions very similar to those now under consideration relating to the laws governing the Board of Regents. In this case the Court held as follows:
" ( 1) The Regents of the University System of Georgia is a distinct corporate entity and is governed by a Board of Regents. Through the board it can exercise any power usually granted to such incorporations, necessary to its usefulness, and not.in conflict with the constitution and laws. An obligation incurred by the corporation, or the Board of RegE:nts, is not a debt of the State, and therefore is not affected by constitutional limitations upon State indebtedness."
"(6) The loan agreement as made by the corporation and its Board of Regents with the Federal government under which bonds will be issued by the Regents and purchased by the government for the purpose of providing funds for stated university uses, thE: bonds to be paid exclusively out of described special funds, does not involve any illegal undertaking on the part of the Board of Regents, and is within the powers granted to the corporation and its Board of Regents by the laws of this State. The court properly refused to enjoin the execution of such agreement."
The above decision seems to be a complete answer to your questions as to the date of July 28, 1934. Our inquiry is therefor: limited to the sole question of whether the laws have been changed or altered subsequent to the date of that decision in such a way as to render the judgment of the Court inoperative at this time. In order to determine this question, it becomes necessary to examine all laws passed subsequent to July 28, 1934.

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In 1935 the General Assembly passed an Act (Ga. L. 1935, pp. 171-173) which clearly changed the law as dE:alt with by the Court in S~ate of Georgia v. Regents of the University System of Georgia, et al, supra. To this effect, see Ramsey v. Hamilton, 181 Ga. 365, decided October 19, 1935, in which the Court held:
" (4) By the Act of 1935 (Ga. L. 1935, p. 171) the status of the Regents of the University System of Georgia is declared to be a governmental agency of the State of Georgia, and the title to all property hE:ld by the same to be in the State. Therefore a suit against the said regents is in effect a suit against the State of Georgia, and can not be maintained without its consent."
On page 378 of this opinion, the Court, in dealing with the change of legislative intent on this question, stated:
"It is a matter of current history that the Act of 1935 from which we have quoted was adoptE:d by the General Assembly and approved by the Governor for the purpose of changing the status and relation which the Regents of the University System of Georgia sustained to the State under the previous law, as pointed out in the decision of this Court in State vs. Regents, supra; and since the passage of that Act it is apparent that the Regents of thE: University System of Georgia is now, and was at the time of the filing of the present suit, a governmental agency of the State in charge of property of which the title is in the State."
See also, State of Georgia v. Davison, 198 Ga. 27. However, on February 1, 1946, an Act was approved which repealed in its entirety the Act of 1935 above referred to, and in addition thereto provided as follows:
"The status of the title to the property and the status and of powers of the Regents of the University System of Georgia and of the Board of Regents arE:' hereby restored to the full extent as if said Act had never been enacted."
It seems clear that the Legislature has manifested a positive intent to restore the status of the Regents of the University System and of the Board of Regents to the same position they held when the case of State of Georgia v. Regents of the University System of Georgia, supra, was decided by the Supreme Court of this State. In other words, after the passage of the Act of February 1, 1946, the Regents of the University System of Georgia again became a distinct corporatE:' entity governed by a Board of Regents. This would mean that an obligation incurred by the corporation or the Board of Regents, is not a debt of the State, and therefore is not affected by constitutional limitations upon State indebtedness.
There was another change in the law since the decision in State of Georgia v. Regents of the University System of Georgia, supra, which must be considered in order to determine whether or not that decision should be operative under E:Xisting law. On August 7, 1945, when the Constitution of this State was revised, the following pertinent provisions were inserted therein in relation to the Board of Regents. In Paragraph 1, Section 4 of Article 8, the following provisions are stated:
"There shall be a Board of Regents of the University System of Georgia, and the government, control and management of the University System of Georgia and all of its institutions in said system shall be vested in said Board

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of Regents of the UnivE:rsity System of Georgia. . . The said Board of Regents of the University System of Georgia shall have the powers and duties as provided by law existing at the time of the adoption of this Constitution, together with such further powers and duties as may be hereafter provided by law."
Two questions are immediately pose,d by the above provisions of the Constitution.. First, does the fact that the government, control and management of the University System and its institutions are vested in a Board of Regents necessarily prevent th:' said Board of Regents from operating this system through the Regents of the University System of Georgia as a distinct corporate entity as was done at the time of the decision in State of Georgia v. Regents of the University System of Georgia, et al?
My answer to this question is that the constitutional provision above referred to do:s not prevent the Regents from operating as a corporate entity as provided for by statutory enactment. The mere fact that the control and management of the University System are vested in the Board of Regents by the Constitution does not in my opinion prevent or prohibit the Regents from operating as a distinct corporate entity. This point of law was passed on in State of Georgia v. Regents of the Univ. System of Georgia, supra, where on p. 179 of the opinion the Court dealt specifically with a statute which is similar to the constitutional provision now under consideration. The Court quoted Section 48 of the Act of 1931, and held as follows:
"By Section 48, as in case of the former trustees, it was provided that 'the government of the Univusity of Georgia and all of its branches . is vested in a Board of Regents. . . .' It is thus seen that the Reg:nts of the University System of Georgia is a distinct corporate entity; though controlled by a Board of Regents which is designated as a department of the State Government."
From the above d:cision of the Supreme Court, I am of the opinion that the constitutional provision does no more than make the Board of Regents constitutional officers of this State, and as such, the Board of Regents become a department of the State government. However, in keeping with the decision of the Court, this does not mean that the corporate entity is a department of State. It therefore follows in my opinion that the decision of the Court clearly applir:s to the constitutional provision now under consideration, since this provision is very similar to the statute (Section 32-113 of the Code of Georgia) which the Court had under consideration. Since this is true, it must necessarily follow that the corporation is fully authorized to enter into any contract or issue revenue bonds which, in its reasonable discretion, may be necessary for the usefulness of the University System or any one of its institutions. This liability incurr:d in the corporate name is not a liability of the State, but rather a separate legal obligation of the corporation.
The second inquiry concerning the constitutional provision which provides that the "Board of Regents ... shall have the powers and duties as provided by law existing at the time of the adoption of this Constitu~ion, together with such other powers and duties as may hereafter be provided by law" does not in my opinion mean that the provisions contained in thE:' Act of 1935 are permanently retained as powers and duties of the Board of Regents. The framers of the Constitution were careful to provide that the Board of Regents should

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not only have the powers and duties existing at the time of the adoption of the Constitution, but that the said, Board was to have such further powers and duties which may be subsequently provided by law. The Act of 1935 primarily deals with the status of the Regents and the members of the Board of Regents over State property. As shown by the caption of the Act, another purpose of this legislation was "to limit and restrict the powers of the Regents of the University System and the members of the Board of Regents." On the other hand, it seems that the Constitution desires to protect all powers and duties of the Board of Regents and to be sure that this authority is not later taken away from the Board by subsequent legislation. The Act of 1946 in repealing the Act of 1935, does not substantially take away any previous authority which the Board of Regents may have had, but on the contrary, this latter Act by repealing the Act of 1935 with its limit and restriction on the powers of the Board, seems, if anything, to enlarge the scope of the powers and duties of the Board of Regents. This is certainly in keeping with the latter part of the constitutional provision which authorizes the Legislature to grant further powers and duties to the Board of Regents.
The above construction of the Constitution seems to be in line with the weight of authority on the subject. In Am. Jur. at page 660, there are numerous cases cited on the following proposition:
"It is proper to assume that a Constitution is intended to meet and be applied to new conditions and circumstances as they may arise in the course of progress of the community. The courts in this country have shown a determination to give our written constitutions, by interpretation, such flexibility as will bring them into accord with what the courts believe to be public interest."
Applying the rule of flexibility to the stated provisions of the Constitution above, it seems that we should give great weight to the opinion of the Legislature in reference to defining just what matters are believed to be in the public interest. It would be a rather harsh rule to rigidly apply the Constitution to such an extent that the Legislature would be powerless to promote public interest by future legislation, unless of course such legislation was in conflict with the Constitution.
From the above provisions of law, I am of the opinion that the State Board of Regents are constitutional officers of this State, and as such are subject to all State laws and regulations. However, the Regents of the University System of Georgia is a distinct corporate entity and is subject to the control of the Board of Regents. The decision of the Supreme Court in State of Georgia v. Regents of the University System, supra, is now in full force and effect under the laws existing at this time. It therefore follows that the revenue bonds issued by the State Board of Regents in its corporate capacity are not obligations of the State. These bonds do not create a debt against the State. On the contrary, the corporate entity had the authority to enter into these contracts by virtue of Section 32-121 of the Code of Georgia which granted to the Board of Regents the power "to exercise any authority usually granted to such corporation, necessary to its usefulness, which is not in conflict with the Constitution and laws of this State."
You ask the further question of whether the power of the Regents to

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issue self-liquidating bonds, is unlimited. The Court in State of Georgia v. Regents of the University System, supra, seems to give a satisfactory answer to this inquiry. On page 218 of the opinion the Court holds:
"So long as the board does not exercise its powers capriciously or arbitrarily, or so as to thwart the purpose of the legislature in establishing a system of university education, the board itself must determine what is necessary for the usefulness of the system, and thus will govern the University of Georgia and its several branches. The powers granted are broad and comprehensive, and, subject to the exercise of a wise and proper discretion, the regents are untrammelled except by such restraints of law as are directly expressed, or necessarily implied. The legislature does not pretend to govern the system, but has entrusted this responsibility to the Board of Regents."

EDUCATION-University System of Georgia (1) Members of the Board of Regents are public officers. (2) The Board of Regents may not transfer funds to the Regents of the University System of Georgia for the purpose of liquidating revenue bonds.

Hon. Ellis Arnall Governor of Georgia

October 24, 1946

This will acknowledge your letter of October 21st, which is supplementary to your letter of October lOth relating to the legality of certain revenue bonds issued by the State Board of Regents. Your earlier inquiry has been answered by my opinion under date of October 18th. At this time I will deal with the questions propounded in your second letter, which are as follows:
"1. Are the members of the State Board of Regents public officials subject to all limitations and restrictions of constitutional and statutory law as public officers?
"2. Can the Board of Regents transf~::r to a corporation income received by the Board of Regents as provided by law?"
In answer to your first question, it is my definite opinion that the members of the State Board of Regents are public officials and are subject to all limitations and restrictions of law to the same extent as other public officials of this State. The members of the Board of Regents are constitutional officers. (See Par. 1 of Section 4 of Article 8 of the Constitution.)

The Legislature has likewise declared the Board of Regents to constitute a department of the State government of Georgia. (See Code Section 32-101.) To the same effect, sE:e State of Georgia v. Regents of the University System of Georgia, 179 Ga. 210, at p. 218, where the Court held:

"It is thus seen that the Regents of the University System of Georgia is a distinct corporate entity, though controlled by a Board of Regents which is designated as a department of the State Government."

Your second inquiry is whether the Board of Regents may transfer to a corporation income received by the Board of Regents as provided by law. You state that this question is supplemE:ntal to those propounded in your letter of October 10, 1946, and I therefore assume that your question is directly

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related to the issuance of revenue certificates by the Board of Regents payable out of certain specified income derived from particular property.
In State of Georgia v. Regents of University, supra, the Court held that "the bonds do not constitute general obligations, but are payable only out of special funds." The Court in that case concluded by holding that the Regents as a corporation were authorized to pay such bonds out of the stipulated income, but that "if thE> payment of any of these bonds from the income as pledged should by any chance cause such a drain upon the resources of the affected institution that it might be in need of increased appropriations in order to function properly as an educational unit, the State would still be under no obligation to supply the deficit, even though it might desire to do so and actually_ do so."
From the reasoning of the Court advanced in the above case, it seems that the Regents as a corporate entity has control over the fE>es and income which have been specifically designated for the payment of these certificates. It should be pointed out in this connection that the Supreme Court dealing with this question placed certain limitations and restrictions on the authority of the Board. On page 218 of the above opinion the Court hE>ld:
"It is further true that the corporation, by and through the Board of Regents, exercises any power usually granted to like corporations, which is necessary to the usefulness of the particular corporation and is not in conflict with the laws of this State. So long as the board does not exercise its powers capriciously or arbitrarily, or so as to thwart the purpose of the lE>gislature in establishing a system of university education, the board itself must determine what is necessary for the usefulness of the system, and thus will govern the University of Georgia and its several branches. The powers granted are broad and comprehensive, and, subject to thE> exercise of a wise and proper discretion, the regents are untrammelled except by such restraints of law as are directly expressed, or necessarily implied. The legislature does not pretend to govern the system, but has entrusted this responsibility to the Board of Regents."
The Board of Regents would not be authorized to pledge money appropriated by the Legislature or from some other source, other than the income from the property specifically designated by the corporation for such purpose, to pay any indebtedness created by the issuance of these revenue certificates. All funds not directly collected by the Regents as a corporate entity would be subject to the same provisions of law as govern all other appropriations madE> by the General Assembly. All appropriations made by the General Assembly should be made to the Board of Regents who are constitutional and public officials of this State. The Board of Regents as such public officials would not be authorized to transfer such appropriated funds to the Regents of the University System of Georgia to liquidate any indebtedness resulting from the issuancE> of these revenue certificates. These certificates or bonds are payable only from the pledged income, and as stated by the Supreme Court on page 222 of its opinion in State of Georgia v. Regents of the University System,
supra,
"Regardless of the stipulations made, the State of Georgia could never be called upon to pay these bonds."

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I am therefort of the opm10n in keeping with the above decision that the Board of Regents would not be authorized to transfer income received by the Board of Regents to the corporation in question for the purpose of liquidating the revenue bonds previously issued by that corporation.
ELECTIONS-Bond$; Qualifications of Vo~ers (Unofficial) The list of qualified voters to be used in a bond election of a county or political division, other than a municipality, is the last perfected list filed for a general election, purged of those who have Subsequently become disqualified.
April 8, 1946
MEMORANDUM
Section 34-401 of the Code requires the registrars, in each year in which a general eltction is held, to meet on April 20th and perfect a voters' list. Under Section 34-405 the voters appearing on the perfected list are entitled to vote at the general State election, all primaries to nominate candidates for the State general election, all Federal elections, the elections for justices of the peace and constables, all primaries for the nomination of candidates for offices to be filled at said election, all primaries for nomination of county officers, and "all other primaries and tlections to be held for any purpose during said year after the filing of said registration list or during the succeed-
ing year: * *' *."
Paragraph 1, Section 7, Article 7 of the Constitution of 1945 provides in part as follows:
"that all laws, charttr provisions and ordinances heretofore passed or enacted providing special registration of the voters of counties, municipal corporations and other political divisions of this State to pass upon the issuance of bonds by such counties, municipal corporations and other political divisions are hereby declared to be null and void; and the General Assembly shall heraafter have no power to pass or enact any law providing for such special
registration, * * *'."
The Supreme Court in Terrell, et al. v. Fores1: Park Consolidated School District, 175 Ga. 88, ruled as follows:
"Thert is no authority of law whereby a person legally qualified to register, but whose name does not appear on the list of voters made up, certified, and filed with the clerk for the last general election, may be registered so "'s to entitle him to vote in a special local school-district-bond election held more than six months after the voters' books close for the last genr,ral election."
In bond elections of the county or political divisions of the State, other than municipalities, the tax collector is to furnish the registrars a certified list of registered voters made for the general election and the registrars are to purge the list of all persons who may have become disqualifitd since the making of the list for the general election. See Fairburn School District v. McLarin, 166 Ga. 867.
Governor Ellis Arnall, while Attorney General, in view of the decisions herein cited, ruled that the tax collector would not be authorized to add the said list used in the last general elEOction to the names of any persons who had,

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subsequent to the last general election, and after the call of the special election, registered with him. He held that the list of qualified voters to be used in the special bond election would be the list of qualified voters used in the last general election after being purged of the names of persons who had subsequently become disqualified. Opinions of the Attorney General, 1939-41, page 224.
Consequently, the voters list made up for the general election of 1945 would be the list of voters to be used in any bond election to be held by the county or any of its political subdivisions, other than municipalities, when such election is held prior to the filing of the perfected Jist of voters for the general election of 1946. If such election should be held after the filing of the perfected list of voters for the general election of 1946 the list as made up for 1946 would be the list to be used in the election.
Parties interested in bond elections for the City of Atlanta and the City of Decatur should consult the city attorneys, respectively. While municipalities may not, under the Constitution, have special registration laws for the registration of voters to participate in bond elections, they may, and in fact, must have a registration system for the registration of voters for all elections of the city.
The- Supreme Court in Goolsby, et al. v. Stephens, et al., 155 Ga. 529, ruled as follows:
"Under this constitutional provision there must be a registration of the qualified voters in such municipality; and where an election is held for the purpose of issuing bonds, in the absence of provision for such registration and of such registration, such election is null and void, as it is impossible to determine, without such registration, that a majority of the registered voters of the municipality have given their assent to the creation of such indebtedness."

ELECTIONS-Candidaoes

The Secretary of State is not required to certify to the ordinaries as candidates for national and State offices at a regular election the names of persons as nominees of a party that did not cast five percent of the votes in the last general election, or as independent candidates, unless the candidate shall file a petition signed by no less than five percent of the registered voters in the territory.*

Hon. Ben W. Fortson, Jr. Secretary of State

August 8, 1946

Your letter of August 8, received. You state that the Constitutional Christian Party and certain individuals have petitioned you to place names of candidates for several State Offices on official ballot for the November election as nominees of said party and as independent candidates and that you declined to do so because said party did not poll five percent of the votes in the last General Election for such officers and that they had not filed with this petition

Action for declaratory judgment dismissed but validity of five percent law questioned in Frank Lowson v. Ben W. Fortson, Jr., Secretary of State, No. 160550, Fulton Superior Court.

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a petition containing five percent of the voters of the territory. You refer to

Code Section 34-1904, 1945 Cumulative Pocket Part of Annotated Code and

request that we advise whether you were right in declining the petition and

in declining to put namEs on the official ballot.

You are required by Act approved February 11, 1946 to certify to the

Ordinaries the names of all candidates for national and state offices who have

qualified with you as provided in said section of the Code. The law does not

require you to certify any other person as candidate. Said act provides that

the ordinaries shall not be required to add any other names for National or

State offices on official ballot.



I am of the opinion that you were correct in your decision.

ELECTIONS-Congress The Governor must issue a writ of election to fill a vacancy in the office of congressman within 30 days after the vacancy occurs, and the election must be held at least 30 days subsequent to the issuance of the writ.

Hon. Ellis Arnall

Decembtr 4, 1945

Governor of Georgia

I am pleased to acknowledge your letter of November 29th, in which you

request my official opinion as to the rights and duties of the Governor incident to calling an election to fill a vacancy created by the resignation of a congressman.

Article I, Sec. 2 (4) of the Constitution of the United States provides as follows:
"When vacancies happen in the representation from any statE, the execu-

tive authority thereof shall issue writs of election to fill such vacancies." The Federal Constitution as above set forth, makes it mandatory upon you

as Governor to issue a writ of election to fill a vacancy of a member of the

National House of Representatives. The Ftderal Constitution is silent as to the method or details of procedure to be followed in the issuance of the writ, the time in which candidates have to qualify, and the date for holding such

an election. These matters have been left for the determination of the various states.
Section 34-2306 of the Code of Georgia provides as follows: "If two or more persons, equally qualified, shall have the same number

of votEs, the Governor shall issue his proclamation ordering a new election, within not less than 30 days."
Section 34-2307 of the Code provides as follows: "If any person duly elected as aforesaid shall not, within 30 days after the Governor's proclamation, apply for his commission, the Governor shall order a new election, as prescribed in the preceding Section; and vacancies for any cause shall be filled in like manner." (Emphasis supplied).

Both of the above Code Sections are taken from the Acts of the Legislature of 1799, and have continuously been the law of this State from that date to the present.

When a vacancy occurs in the office of congressman, it is necessary for

240
the Governor to issue his proclamation ordering an election to fill the unexpired term within 30 days of the date of the vacancy. This means that the Governor is required to issue his proclamation within not less than 30 days after the occurrencE: of the vacancy. Neither of the above statutes attempt to prescribe the date on which the election for congressman shall be held.
Section 34-1904 of the Amended Code provides in part as follows: "In all elections other than primary elections held under the auspices of a political party, it shall be the duty of the ordinary to provide and furnish at the expense of the county . . . official ballots for all such elections . . . All candidates for National and State offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their namE:s and the offices for which they are candidates, with the Secretary of State, at least 30 days prior to the regular election, ..." The above statute seems to require that all candidates for National and State offices must file notice of their candidacy with the Secretary of State at least 30 days prior to the date on which the election is to be held. While this statute doE:s not specifically provide for a date for holding an election to fill a vacancy created in the office of congressman, it nevertheless clearly indicates that such an election should not be called for at least thirty days after the writ or proclamation is issued by you as Governor. This is true for the reason that candidates desiring to offer for the office of congressman to fill the unexpired term must file notice of their candidacy with the Secretary of State at least thirty days prior to the date of thE: election. In view of the above provisions of law, I am of the opinion that should a vacancy in the office of congressman exist in any of thE: districts of this State, you, as Governor, are required by Article I, Sec. 2 (4) of the Federal Constitution to issue a writ of election to fill such vacancy. This writ of elE:ction by virtue of Section 34-2306 and Section 34-2307 of the Code of Georgia must be issued within not less than 30 days of the date on which the vacancy occurs. I am of the further opinion that the date on which the election is to be held shall be at least thirty days subsequent to the da'te of the issuance of the writ or proclamation ordering the election, in order to give candidates an opportunity to qualify for the vacancy as set forth in Section 34-1904, supra. While the law requirE:s a minimum period of thirty days to exist between the writ of election and the date on which the election is to be held, the Legislature has not seen fit to place a maximum period in which the election must be held. It seems that the maximum time for holding the election after the issuance of the writ, is a matter which addresses itself to the sound discretion of the Governor.

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ELECTIONS-Congre.ss A prospE:ctive resignation of a member of Congress does not become effective until the date named therein and no writ of election to fill the vacancy may issue until such date.
December 11, 1945 Hon. Ellis Arnall Governor of Georgia
Your letter of December 8th received. You quote in your letter a communication from Congressman Ramspeck tendering his. resignation effective at midnight, December 31, 1945, and state that you accepted his rE:signation as a member of the House of Representative of the United States from the fifth district of Georgia, effective at midnight, December 31, 1945. You request my official opinion on the question of whether or not you are now authorized to issue a writ of election or whether you should wait until aftE:r midnight, December 31, 1945, to issue the writ.
By referring to the provisions of the Federal Constitution and Georgia statutes quoted in my opinion of December 4th, it will be seen that the calling of an election to fill a vacancy in the office of Congressman contemplates that the vacancy must be in actual existencE:, and that the Governor should issue the writ within the period of thirty days from the happening of the vacancy. Thirty days or more must elapse betweE:n the time the call is made and the time set for the election so that candidates may qualify with the Secretary of the State as provided for in Section 34-1904 of thE: Code of 1933.
46 C. J. provides in part as follows: "A conditional resignation can not be accepted except on the terms made
by it. ,. * *"
"A prospective resignation, even though acceptE:d, does not take effect until time it named; and where an officer tenders his resignation before the date to hold an election, to take effect after such time, the office is not vacant, and no election to fill the office can be legally held."
In the case of W. G. Blount v. L. F. Anderson, 1 Ky. Opinions, 62, a cluk of a county court tendered his resignation in the following language:
"I hereby resign the office of county court clerk of Graves County, Kentucky. My resignation is to take effect on the second Monday in August next. I make the resignation to take effect after the August E:lection in order that my successor elected in August may have time to qualify."
The Court ruled that the resignation did not take effect until after the election, that the office was not vacant at the time of the election, and that no elE:ction to fill the office could be legally held. The Court in the Opinions states:
"The county judge did not regard the office vacant upon the reception of Bolinger's letter or he would have appointed a successor to fill the vacancy until the next regular election. And the writ of election which he causE:d to issue, and which issued without authority of law, could not legalize an election even if it had been held by virtue thereof, and could confer no rights upon anyone voted for in such case."
The Court of AppE:als of Ohio in State, ex rei Staley v. Ci"y of Lakewood; 192 N. E. 180, ruled as follows:

242
"Officers written resignation, delivered to board or officer authorized to receive it, is prima facie, but not conclusive, evidence of his intention to relinquish office. Officer's resignation to take effect in future may be withdrawn before effective date thereof even against will of body, which has accepted it."
The Supreme Court of Missouri in case of State of Missouri, ex rei James Berry v. Mi::heal K. McGrath, 64 Mo. 139, ruled that an election would be invalid where the judge of a circuit court in July transmitted to the Governor his resignation to take effect in December where the election was held prior to December. The Court also ruled that the acceptance of the resignation prior to December did not vacate the office until the later date.
The Supreme Court of Indiana in State, ex rei, McGuyer v. Huff, 87 N. E. 141, ruled that a conditional resignation can not be accepted except on the terms made by it.
The Supreme Court of Georgia in Patten v. Miller, 190 Ga. 123, ruled that thue must be an actual vacancy before the power or duty of filling an office arises under the provision of the State Constitution. In headnote 1 (g) the court states:
"An actual vacancy being a condition precedent to the authority of jurisdiction to appoint, the question of its existence is subject to inquiry, at the instance of the person whose tenure is challenged should he desire to make an issue of it in a judicial proceeding."
Taking into consideration the Federal Constitution and the Georgia statutes relating to vacancies, and the decisions hereinbefore cited, it is my opinion that you, as Governor, have .no jurisdiction to issue a writ of election to fill a vacancy until the vacancy actually occurs. I am of the further opinion that there is no actual vacancy in the office of Congressman for the fifth district until midnight, December 31, 1945, and, therefore, you can not legally order an election until after midnight, December 31, 1945.

ELECTIONS-Disqualification of Voters (Unofficial) A notice of challenge of a registered voter is served by the sheriff, his deputy or a lawful constable. The costs of service are paid from the county treasury.

Hon. T. J. Townsend County Attorney Alma, Georgia

June 20, 1946

Your letter of June 18th received. You request that I advise: who may serve notice given by Board of Registrars to person whose name has been challenged on the ground of disqualification as a voter, and who shall pay the expense of serving the notice.
Sections 34-603, 34-604 and 34-605 of the Code of 1933 deal with this question. The Registrars have the right to question the qualification of any registered vottr, and any citizen may also contest the right of registration of any person whose name appears on the voters' list. The Registrars are required by law to give notice to the person whose right to appear on the voters' list is

243
questioned either by the Registrars or by any citizen. The notice is to be in writing and served upon the person either personally or by leaving th~:; same at his most notorious place of abode. The Code does not directly designate any special officer who is required to serve notice. Section 34-603 does provide that the sheriff, his deputy, or any lawful constable of the county may serve all summons, notices and subpo~:;nas issued by the Registrars and shall receive such compensation as is customary for like service. This indicates to my mind that the General Assembly contemplated that service of the notice would be made by one of the officers named.
Section 34-1001 provides that the county shall pay. the tax collector for making the voters' book and disqualified list. It also provides that the county shall pay the Registrar and the last sentence provides as follows:
"The cost of the vot~:;rs' book and of printing the list provided for shall be paid out of the county treasury as other county bills are paid."
This Section lodges a wide discretionary power in the county fiscal authorities in that it provides that they may fix a different compensation to be paid the Registrars from that named in the Section.
In Howell v. Bankston, 181 Ga. 59, the Supreme Court held that under constitutional and statutory provisions county commissioners are authorized to pay from general county funds the costs of county registrars in preparing list of voters. The court points out the constitutional provisions that r~:;quire the preparation of the voters' list.
I am of the private opinion that the officers costs for serving notice issued by the registrars, where the registrars of their own motion challenge the right of one to appear as a qualified voter, should be paid from county funds. I am not certain in my mind whether the county should be r~:;quired to pay the officer for serving the notice based upon a challenge made by some third party, if it should develop that the challenge was without foundation. In such a case it takes the nature of a contest between the third patry and the voter before the Board of Registrars; however, I do not find any provision of law that would authorize the Board of Registrars to assess costs either against the citizen, if the chall~:;nge was unsuccessful or against the voter if the disqualification was shown. There is a provision in Paragraph 5, Section 1, Article 2 of the Constitution of 1945 which provides for the right of appeal by a person who is denied the right to register on grounds that he lacks the constitutional qualifications, the appeal to be made to the Superior Court. Since there is no power in the Board of Registrars to assess the costs, it would seem that the officer who servt::d the notice should be paid his fee from the county treasury. I do not find where either of these questions have been passed upon by any court, and of course I can not presume what a court would find.

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ELECTIONS-Disqualification of Voters (Unofficial) (1) The registrars may not remove the name of a challenged voter from the voters list except upon legal proof of disqualification. (2) A person making a challenge may examine the registrant as to his qualifications.
July 8, 1946 Hon. Joe K. Telford Gainesville, Georgia
Your letter of July 5th received. You rE:quest that I construe Section 34-402 and advise whether or not a registrant's name should be removed from the voters' list where the person has been challenged, but fails to appear, and where no evidence has been submitted to substantiate the challenge. You also request that I advise whE:ther or not the person making the challenge and his attorney shall have the right to examine the registrant as to his qualifications where the registrant appears after notice of the challenge.
Chapter 34-2 of the Code outlines the duties of the tax collector in mak-. ing up a list of the registered voters and the list of disqualifiE:d voters. Section 34-401 provides that the registrars shall perfect a true and correct list of qualified voters. This Section also provides that the list furnished by the tax collector shall be prima facie evidence of the right of the person whose name appears thereon to vote. BeforE: the name of such a person could be left off of the voters' list, whether challenged by the registrars or a citizen, notice of the challenge must be given to the party.
Section 34-402 provides that all names appearing on the list taken from the voters' book, and not appearing on the list of disqualified voters, shall be E:ntered on the list of registered voters, unless withheld therefrom by the registrars. This Section also provides that a name appearing on the list taken from the voters' book, and not appearing on the list of disqualified voters shall be withheld from the list of registered voters when the county registrars are convinced by sufficient legal proof that such person is, in fact, not qualified to vote.
It thus appears that the registrars may withhold from the voters' list the name of a party appearing thereon. However, they can not arbitrarily withhold such a name. The disqualification must bE: shown by legal proof, that is legal evidence sufficient to convince that the person is in fact not qualified to vote. I am inclined to the opinion that this evidence may be furnished by affidavits and that the registrars if they see fit may require witnesses to appear and be sworn as in other legal proceedings. Section 34-602 empowers the board of registrars with authority to subpoena and swear witnesses, and to rE:quire the production of books, papers and etc.
I am, therefore, of the unofficial opinion that where a citizen challenges the ,right of a person appearing on the tax collector's list to appear on the voters' list, sufficient legal proof should be offered by the challenger to substantiate the grounds of the challenge, and unless such proof is offered sufficiently to convince the registrars that the person is not qualified to vote the name should remain on the voters' list. HowE:ver, all such questions are questions for determination by the registrars in each particular case and it is beyond my province to express when sufficient proof has been offered. I think that

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the person making the challenge, or his attorney, would have the right to examine the registrant when the registrant appears bE:fore the board on any question touching the qualification of the voter.
ELECTIONS-Justices of the Peace An election for justice of the peace must be superintended by three freeholders.
Novembtr 2, 1945 Hon. John B. Wilson Secretary of State
This will acknowledge your letter of October 31, in which you ask for my opinion as to the legality of an election for Justice of the Peace, where the election was presided ovE:r by only two managers, one of which was a Notary Public and the other a freeholder.
Section 34-2703 of the Code of Georgia of 1933 reads as follows: "The elections shall be superintended by three freE:holders of the district, who shall be appointed by the Ordinary of the County, and upon the failure of one or more of the freeholders appointed to act, the place or placE:s shall be filled by any other freeholder or freeholders of the district, who shall take the oath required in Section 34-1202." Section 34-2704 of the Code reads as follows: "The laws governing the elections for membE:rs of the General Assembly shail govern in the elections for Justices of the Peace, whenever they may be applied, and are not inconsistent with this Chapter." Section 34-1201 of the Code reads as follows: "The persons qualified to hold elections for members of the General Assembly are Ordinaries, Justices of the PE:ace and freeholders. There must be three managers, and one must either be an Ordinary or Justice of the Peace, except that if by 10 o'clock a. m. on the day of election there is no proper officer present to hold the election, or there is one and he refuses, three freeholdE:rs may superintend the election, and shall administer the oath required to each other, which shall be of the same effect as if taken by a qualified officer. Persons who cannot read and write shall not be competent to serve as managers of elections." You will note that the statute as to managers of elections for Justices of the Peace differs from thE; statute as to managers of elections for members of the General Assembly, in that the managers of elections for Justices of the Peace must be three freeholders. There is no provision of law which authorizes a lesser number than three to manage elections for any official. Where an election for Justice of the Peace is held and superintended by persons other than freEholders, or by a lesser number than three, the laws governing such elections have not been complied with. Therefore, I am of the opinion that you would not be authorized to certify the returns to the Governor.

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ELECTIONS-Notice of Candidacy; Solicitors General The Secretary. of State may not direct the ordinaries to place on the general election ballot the name of a party nominee for solicitor general submitted to him within 30 days of the election date.*
October 15, 1946 Hon. Ben W. Fortson Secretary of State
This will acknowledge your inquiry requesting an official opmwn concerning your official duty as Secretary of State in reference to the matter of certifying the name of Hon. Columbus Alexander to the various ordinaries as the nominee of the Democratic Party for the office of Solicitor General of the Eastern Judicial Circuit.
The facts reveal that the term of office for Solicitor General of the Eastern Circuit runs from January 1, 1945, to January 1, 1949, and that Hon. Samuel A. Cann, the duly elected Solicitor General resigned this office on September 5, 1946. His rE:signation was accepted by the Governor, thereby causing a vacancy to exist in the office.
The facts in this case are similar to those previously presented in the Davis-Mankin matter, in that the State Democratic Party did not submit the name of this candidate to you as Secretary of State within the time provided by statutory law in order to have the name printed upon the ballots. ThesE; statutes, Section 34-1904, and the Soldiers Voting Law, together with several recent decisions of the judiciary, are fully set forth in my opinion to you under date of October 12, 1946 in the Davis-Mankin case. I will not repeat these statutes or decisions here, but simply hold that thE:y apply with equal force to this matter.
In addition to the matters covered in my previous opinion, there is one additional fact which should be considered here. Par. 1 of Section 11 of Art. 6 (Code Section 2-4601 of the Pocket Part SupplemE:nt to the Code) provides as follows:
"There shall be a solicitor general for each judicial circuit, whose official term (except to fill a vacancy) shall be four years. The successors of present and subsequent incumbents shall be elected by the tlectors of the whole State, qualified to vote for members of the General Assembly, at the general election held next preceding the expiration of their respective terms. Every vacancy occasioned by death, resignation or other cause shall be filled by appointment of thE: Governor, until the first day of January after the general election held next after the expiration of 30 days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected."
The above Constitutional provision clearly provides that the Governor shall fill the vacancy by appointment until the first day of January, and that a successor for the unE:xpired term shall be elected at the preceding general election, or in this case, the general election to be held on November 5, 1946. In
*"The Secretary of State was therefore correct in acting upon the advice of the Attorney General and in refusing to certify the name of the relator Alexander to the various county ordinaries; but acted in accordance with the statutory law in instructing the ordinaries not to place his name on the official ballots by reason of the fact that his name had not been filed as a candidate within the prescribed time." Alexander v. Ryan, 43 S. E. 2d 654, decided July 10, 1947.

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the present case this means that a successor shall be elected in the November general election, since the vacancy occurred more than thirty days prior to the date of this election. The Constitution itself recognizes that if the vacancy occurs within thirty days of the date of the general election, a successor will not be elected at that election, but the appointee of the Governor under these circumstances will hold over until the following general election. It is reasonable to assume that the framers of the Constitution foresaw the difficulty of printing the names of candidates on the general election ballots in instances where the vacancy occurred within thirty days of the date of the general election. Section 34-1904 likewise shows an intention on the part of the General Assembly to require all candidates for national and state offices, or the proper authorities of the political party nominating them, to file notice of their candidacies with the Secretary of State at least thirty days prior to the regular election, except in instances where a second primary election is necessary.
Since the official ballots have already been sent to the various ordinaries of the State as required by law, and presumably these ballot5 have already been printed, it seems that you have no authority to require the ordinaries to subject their counties to the additional expense of reprinting the ballots; but on the contrary, the solution seems to be that the office of Solicitor General could be filled by a write-in vote in the coming general election. While this procedure of a write-in vote has many disadvantages, it is the only one which you as Secretary of State can follow under existing law. It is my suggestion that the Legislature at its next session enact proper statutory laws to cover situations such as this. Without such legislation, I cannot conscientiously advise you as Secretary of State to disregard the present laws and to substitute therefor a method of your own choosing to fill this gap in the law.
I can immediately see many hazards and pitfalls that would await you should you direct the ordinaries to reprint these official ballots after the statutory period for certifying such names has terminated. In addition to the added expense required to reprint these ballots, you would also be confronted with the time element of when you would refuse to receive additional names. There being no law on the subject, you would be compelled to substitute your views for that which has not been provided for by the General Assembly.
It is therefore my opinion that you, as Secretary of State, are without legal authority to direct the ordinarie:s at this late date to reprint these ballots and place the name of Hon. Columbus Alexander thereon as nominee of the Democratic Party for Solicitor General of the Eastern Circuit. The law has fixed the date for candidates to qualify if they desire their names certified by you to the ordinaries, and we are without authority to change or extend that time limitation as prescribed by the General Assembly.

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ELECTIONS-Noti::e of Candidacy; Members of Congress The Secretary of StatE: may not direct the ordinaries to place the name of a candidate for Congress on the general election ballot as the sole nominee of the Democratic Party where thE: name of such person, as sole nominee, was submitted to him within 30 days of the election date.*
October 12, 1946 Hon. Ben W. Fortson, Jr. Secretary of State
This will respond to your letter dated October 11, in which you state that you are in receipt of a telegram from Hon. James S. Peters, Chairman, and Hon. Joe Boone, Secretary of the State Democratic Executive Committee, certifying to you thE: name of Hon. James C. Davis as the nominee of the Democratic Party for Congressman from the Fifth Congressional District of Georgia, and Hon. Columbus Alexander as the nominee of the Democratic Party for Solicitor General of the Eastern Circuit, to succeed Hon, Samuel Cann, retired, and instructing you to forward such information to the county ordinaries in order that those names might be placed upon the ballots for the November 1946 General Election as the Democratic nominE:es of the Democratic Party in this State. You further state that those instructions were received by you on the lOth day of October, less than thirty days prior to the General Election on November 5.
You first inquire whether there is any provision of law which authorizes you to make any changes in the General Election ballots at this time, by dirE:cting the ordinaries to designate Hon. James C. Davis as the sole nominee of the Democratic Party, which would result in the removal from said ballot of the name of Mrs. Helen Douglas Mankin, who was certified to you by the former authorities of the Democr~tic Executive Committee within the time required by the provisions of the Soldiers Voting Law.
The answer to that question involves a construction of Section 34-1904 of the Georgia Code of 1933, as changed or amended by subsequent lE:gislation. That section provides, in material part, as follows:
"In all elections other than primary elections held under the auspices of a political party, it shall be the duty of the ordinary to provide and furnish at the expense of thE: county, and in cases of purely municipal elections, at the expense of the municipality, official ballots for all such elections, having printed thereon, in separate columns, the names of the candidates of each political party, designating the name of thE: political party to which they belong, and also the names of any other candidates for the offices to be fillE:d at said election; and in case of election for President and Vice-President of the United States, the names of the candidates for such offices may be added with the electors and party designation; provided, however, it shall not be the duty of said officers to place the namE:s of any candidates on said official ballots, unless notice of their candidacy is given in the following manner, to-wit: all candidates for national and state offices, or the proper authorities of the political
*Mandamus absolute against the Secretary of State granted in Davis v. Fortson, Secretary of State, No. 161494, Fulton Superior Court, decided October 28, 1946. However, see Alexander v. Ryan, 43 S. E. 2d 654, decided July 10, 1947, quoted in preceding footnote, page 246.

24~
party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State, at least 30 days prior to the regular election, except in cases where a second primary ~::lection is necessary; "
By an act approved January 7, 1944, the General Assembly made provision for Georgia men and women in the military service of the United States to participate in county, state and national elections and in party primaries. Section 8, Paragraph 1 of that Act provides:
"All candidates for national and state offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and thE: offices for which they are candidates, with the Secretary of State, at least 90 days prior to the regular election. All candidates for district and county offices either by themselves or by the proper authorities of the party nominating them, shall file notice of their candidacy with the ordinary of the county at least 90 days before the regular el~::ction."
Section 10 of that Act provides:
"The Governor shall furnish the several ordinaries all blank forms necessary for the general elections in sufficient time for the ordinaries to have the ballots printed at least 70 days beforE: election day."
By an Act approved February 1, 1946 (Act No. 632) the General Assembly expressly repealed certain provisions of the election law prescribing duties upon the Governor relating to the furnishing of blank forms, tally sheets and blank lists of voters and certificates used in holding of el~::ctions. It also expressly repealed Paragraph 7 of Section 40-601 of the Code, relating to the duties of the Secretary of State, as to furnishing forms of returns, certificates, directions and advice to the ordinaries with reference to holding elections, and in lieu thereof enacted a new Paragraph 7 making it th~:: duty of the Secretary of State to furnish each ordinary of the state the form of official ballot, all blank forms, including tally sheets, blank lists of voters, forms of returns, certificates and directions to be used in all elections for certain offices, including "RepresentativE:s to Congress" and "Solicitors General." That Act further provides:
"The Secretary of State shall certify to the respective ordinaries the names of all candidat~::s for national and state offices who have qualified as such as provided in Section 34-1904 of the Code of Georgia; and in case there are one or more persons purporting to represent the same political party or candidate, it shall be the duty of the Secretary of State to determine such an issue. The ordinaries of the respective counties shall not be rE;quired to add any other names for national and state offices on the official ballot except upon certification of the Secretary of State."
As early as April of this year I was asked by the Governor for an official opinion as to whether the Soldiers Voting Law of 1944 is still in effect and as to thE; time required by law for holding a State Democratic Primary. On April 20, 1946, in response to that request, I ruled that "the terms and conditions of the Soldiers Voting Law, as enacted at the 1944 Extraordinary Session of the General Assembly, are still in effect and that the setting of the date of the State Democratic Primary shall be controlled thereby." Pursuant to that opinion the State Democratic Executive Committee called a State Primary for

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July 17, 1946, on which date it was held. If the Soldiers Voting Law had not been in effect the time fixed by law for holding the primary would have been the second Wednesday in September (see Code Section 34-3212).
In the case of Mrs. Robert Lee Turman and Cullen B. Gosnell v. J. Lon Duckworth, et al., Civil Action No. 3013, in the District Court of the United States for the Northern District of Georgia, Atlanta Division, which is a case attacking the County Unit System of holding party primaries, in defense of that system I took the position, joined in by all dtfense counsel, that the action (filed August 2, 1946) came too late; because under the Georgia law (Soldiers Voting Law), candidates for state offices must qualify with the Secretary of State 90 days (August 6, 1946) before the General Election, and the Secretary of State is required to cause to be printed and distributed to the ordinaries the forms necessary to hold the General Election in time for the ballots to be printE:d by the ordinaries and ready for distribution 70 days before the General Election. The Three-Judge Federal Court adopted this position, stating as follows:
"These voters, voting without protest under it (Democratic Primary), do not stand well in a belated complaint made after it was too late to have another primary or even a convention nomination, the time for candidates in the General Election to qualify being too close at hand."
In the case of Earl P. Cook v. Ben W. Fortson, Jr., et al, Civil Action No. 3012, District Court of the United States for the Northern District of Georgia, Atlanta Division, which is a case contesting the nomination under the County Unit System of a Democratic Party candidate for Congress from the 5th Congressional District, I also asserted the same position regarding the Soldiers Voting Law, and further advised the court that the names of both JamE:s C. Davis and Helen Douglas Mankin had been certified by the Chairman and Secretary of the State Democratic Committee to the Secretary of State as Democratic nominees for Representative in the United States Congress from the 5th Congressional District; and that you, as Secretary of State, had distributed to thE: various ordinaries the forms of ballots upon which both of said persons appeared as nominees. Again the Three-Judge Federal Court relied on this contention regarding the Soldiers Voting Law; and in its opinion, asserted that as matters stood at the time of the trial the plaintiff was getting exactly what he claimed he should have as the State Executive Committee had certified both candidates, and both names were on the ballots which WE:re being printed.
In the motions to dismiss the appeals to the United States Supreme Court in both of the mentioned cases, the position that the Soldiers Voting Law is still in effect was reaffirmed.
In the case of Frank Lawson v. Ben W. Fortson, Jr., Secretary of State, No. 160550, Fulton Superior Court, which was an action for a declaratory judgment to test the constitutionality of the Five Percent Law (Ga. L. 1943, p. 292), and for damages, I maintained that the action did not set out an "actual controversy", because of the provisions of the Soldiers Voting Law requiring candidatE:s to be certified to the Secretary of State 90 days before the General Election and requiring the forms of ballots to be furnished the ordinaries so that ballots could be printed in time to be distributed 70 days before the General Election. In sustaining that contention, the Court said:

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"Under the provisiOns of Code Section 34-1904, notice of all candidacies must be given to the Secretary of State at least thirty (30) days prior to the regular election, except where a second primary election is necessary. Under the provisions of Section 8, Paragraph 1 of the Act approved January 7, 1944, this time limit was increased to ninety (90) days. Under this last mentionE:d act the duty was placed on the Governor to furnish the blank forms necessary for the General Elections in sufficient time for the ordinaries to have the ballots printed at least seventy (70) days before election day. Under the Act approved February 1, 1946, this duty was transferred from the Governor to the Secretary of State, but this Act of 1946 in. no manner repealE:d the ninety (90) day provision of the Act approved January 7, 1944."
Those decisions are binding upon you as Secretary of State, and upon me as Attorney General; but even if I could now consistently assert a contrary view, I believe the position formerly taken to be unquestionably sound.
Section 21 of the Soldiers Voting Law provides: "The terms and provisions of this act shall expire and become extinguished upon thE: convening of the General Assembly in regular session next after the termination of the present war."
In Dubbisson, et al v. Simmons, et al, 26 So. 2d 438, the Supreme Court of Florida, on May 25, 1946, in construing that part of a state statute effective so long as a state of war with the Axis powers actively continues, held that the courts have no power to determine that a state of war exists or that war once declared by proper authorities no .,longer actively continuE:s, unless such determination is based on an affirmative act of Congress, Presidential proclamation or a peace treaty approved by the United States. It further held that the President's proclamations stating that the Allied Armies had wrung final surrender from Germany and that the JapanE:se armed forces had surrendered unconditionally were not a "termination of the War" between the United States and Germany or Japan. See also, Bowles v. Ormesher Bros., 65 F. Supp. 791; Citizens Protective League v. Byrnes, 64 F. Supp, 233; Hamilton, Collector, et al v. Kentucky Distillers and Warehouse Co., 251 U. S. 146, 147.
Even were it assumed that the President's Proclamations, on May 8, 1945, and August 16, 1945, marked the termination of the War, the General Assembly has not met in "regular session" since that time. The 1946 session was an adjourned sE:ssion to complete the business of the regular session that convened in January 1945, which was prior to those proclamations. "Adjourned session is considEored as the same session with that at which adjournment was made." Mechanics Bank v. Withers, 6 Wheat, 106.
The Constitution of Georgia ratified at the General Election held August 7, 1945, provides in Article 2, Section 4, Paragraph 3:
"The General Assembly shall meet in regular session on the second Monday in January, 1947, and biennally thereafter on the same day, until the date shall be changEod by law." ~ It is further significant that the conditions which the Soldiers Voting Law was intended to alleviate still exist. Until today Georgia citizens were still being drafted into the United States armed forces, and the drafting of men has now been only temporarily suspended by administrative action. Of the large

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number of Georgia citizens still serving, many are in occupation forces in distant parts of the world.
Act No. 632, approved February 1, 1946, did not specifically repeal the Soldiers Voting Law or any provision thereof. It does not refer to the time by which the notice of candidacy must be filed with the Secretary of State, nor to the time by which the ballots must be printed. It does refer to Code Section 34-1904 as follows:
"The Secretary of State shall certify to the respective ordinaries the names of all candidates for national and state offices who have qualified as such as provided in Section 34-1904 of the Code of Georgia...."
I would be most reluctant to read into this provision an intention on the part of the General Assembly to repeal by implication the time provisions of the Soldiers Voting Law; and thus, in effect, to disenfranchise the Georgia citizens still strving in distant parts of the world. The Superior Court of Fulton County specifically passed upon the question in the case of Frank Lawson v. Ben W. Fortson, Jr., supra.
Repeals by implication are not favored, and to bring about this result the legislative intent to repeal must be ascertained from the language of the act and must be clear, manifest and irreconcilable with an intent not to repeal. Britton v. Bowden, 188 Ga. 806; Connor v. O'Brien, 198 Ga. 221.
The Soldiers Voting Law is an act of temporary duration only, and thus must be considered as special or particular in its application. A later statute which is general and affirmative in its provisions will not abrogate a former one which is particular or special. Erwin v. Moore, 15 Ga. 361; Davis v. Dougherty County, 116 Ga. 491.
The act approved February 1, 1946, does not meet those requirements. Both that act and the Soldiers Voting Law may stand, as the latter will expire by its own terms at a time designated in the statute.
But even assuming for the sake of argument that the time provisions for the Soldiers Voting Law were by implication repealed by the Act approved February 1, 1946, Section 34-1904 of the Code requires notice of the candidacy of persons for national and state offices to be filed with the Secretary of State at least 30 days before the regular election, which time had expired when the notice mentioned in your letter was received.
The question next occurs with respect to whether the provisions requiring notice of candidacy to be filed with the Secretary of State a specified time before the regular election are mandatory or directory only. Those provisions impose limitations upon the candidates or the proper authorities of the political party nominating them. It is generally and almost universally held that statutory provisions in election statutes requiring that a certification or application of nomination be filed with a specified officer within a stipulated period of time are mandatory. See the authorities enumerated in 72 A.L.R. 290. See also, 29 C.J.S., Elections, Section 137. Further citation of authority on this point is deemed unnecessary.
The duties imposed upon the Secretary of State by the Soldiers Voting " Law and the Act approved February 1, 1946, with respect to furnishing the ordinaries all blank forms necessary for the General Election in sufficient time for the ordinaries to have the ballots printed at least 70 days before elec-

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tion day, is clearly mandatory. Although generally a statute specifying a time within which a public officH is to perform an official act regarding the rights of others is merely directory (Hudson v. Williams, 5 Ga. App. 245; Hastings v. Wilson, 181 Ga. 305), here time is of the essence. The purpose is to assure the printing of official ballots in time to afford Georgia citizens serving in the armed forces an opportunity to vote for the candidates at the regular election. If those provisions are not mandatory new candidates may qualify, unknown to the absentee voters, at anytime before the regular ele:ction, new forms must be distributed to the ordinaries, new ballots must be printed at a large additional expense to the taxpayers, and at the risk of confusion and possible fraud in the election. If those provisions are not mandatory, many other provisions of the law seeking to assure an orderly election must be held directory only; but see Moon, et al v. Seymour, 182 Ga. 702.
The circumstances necessarily should be rare where the candidates on the official ballots furnished servicemen and other absentee voters differ from those appearing on the ballots used on election day. Certain e:xigencies are specifically provided for by statute. Section 34-1904 provides:
"In the event of the resignation or death of any nominee of any political party prior to the regular ele:ction at which the name of said nominee is to appear on the official ballot, said vacancy in nomination shall be filled in such manner as may be determined by the proper authorities of such party."
It will be observed that the quoted provision applies only to a "vacancy in nomination" occurring by the resignation or death of any nominee of any political party prior to the re:gular election. The enumeration of those causes exclude others. If it was proper for the then officials of the party to file notice of two candidates as party nominees for the same office, there does not appear to have subsequently occurred the death or resignation of either of those candidates. But even if a political party may not have two candidates at the same time for the same office (see 20 C.J. 126) or the effect of the certification of both candidates was, as stated by the: Federal Court in Cook v. Fortson, supra, "in effect a cancellation of the primary, as respects these two candidates", I find nothing in the election Jaws of this State which authorizes you to now certify to the ordinaries the name of James C. Davis as the sole nominee of the party for that office. The party rules can neither amend nor abrogate the statute.
Accordingly, it is my opinion that you as Secretary of State: may not now direct the ordinaries to make changes in the General Election ballots by directing the ordinaries to designate Hon. James C. Davis as the sole nominee of the Democratic Party. This opinion is limited to the first question asked in your inquiry.

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ELECTIONS-Poll Taxes (1) Poll taxes for years prior to 1945 may not be demanded of delinquent taxpayers but may be received if paid voluntarily. (2) Payment of de:linquent poll taxes is not a prerequisite to voting.*
September 12, 1945 Hon. M. E. Thompson Commissioner of Revenue
I am pleased to acknowledge your letter of September 11th, in which you ask the following questions relative to poll taxes:
"(1) What conditions are poll taxes for years prior to 1945 collectible?" ANSWER: The Constitution of 1945 omits the payment of a poll tax as a prerequisite for voting. Paragraph 3 of Section 1 of ArticlE 2 of the new Constitution, provides as follows: "To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he: offers to vote six months next preceding the election." Delinquent poll taxes are no longer a bar to voting, and such taxes cannot be demanded of taxpayers. The tax collecting authority of the county is not, in my opinion, authorized to issue a fi.fa. for delinquent poll taxes, since the Legislature at its 1945 session definitely repealed this tax. This leaves the tax collecting official without any statutory machinery by which such poll taxes could be: demanded of the delinquent poll tax payer. While the payment of delinquent poll taxes cannot be demanded, the tax collecting authority would however, in my opinion, be authorized to receive the payment of such taxes from all persons who volunteered to pay same. These past due taxes were not cancelled by the adoption of the Constitution of 1945, but were simply made uncollectible as a matter of law. This would not prevent any taxpayer who felt that he: should have paid these taxes in the past from now making such a payment. Your second question is as follows: "(2) Is the payment of poll taxes for years prior to 1945 required as a prerequisite for voting in the State of Georgia?" ANSWER: The Constitution of 1945 has definitely abolished the payment of poll taxes as a prerequisite for voting in the: State of Georgia. This applies to poll taxes which accrued prior to the year 1945 and which have not been paid by the taxpayer. It is now optional with delinquent taxpayers as to whether or not they desire to pay such taxes, but in any event the non-payment of poll taxes for past or future years is no longer a bar to voting under the provisions of the Constitution as amended.
But see the Act of 1946, p. 42, requtrmg persons not on the qualified voters Jist at the General Election of November, 1944, and who have not registered thereafter, to register before voting at any general or special election.

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ELECTIONS-Primary (Unofficial) In the absence of a charter provision, the party executive committee of the municipality fixes the closing date for candidatE::s to qualify for municipal primary elections. October 31, 1945
Hon. Roy B. Friedin Attorney at Law Vienna, Georgia
This will acknowledge your recent letter in which you ask whether or not there is any State law relating to primaries which requires a candidate to file a notice of his intention to run for nomination in a municipal primary election.
The only State law referring to the qualification of municipal candidates is found in Chapter 34-19 of the Amended Code. Section 34-1904 of this Chapter provides in part:
"All candidates for district and county offices, either by themselves or by the proper authorities of the party nominating them, shall file notice of their candidacy with the ordinary of the county at least 15 days before the regular election, and all candidates for municipal offices shall file notice of their candidacy, either by themselves or by the proper authorities of the party nominating them, with the mayor or other chief executive officer of the municipality at least 15 days before the regular election...."
The above statute only applies to elections other than primary elections, and the entire chapter as stated in Section 34-1901 thereof, is only operative where it is recommE::nded by two consecutive grand juries of the county.
If the charter of the municipality does not contain a provision on the subject, it would seE::m that a Democratic executive committee of the city would set the closing date for candidates to qualify for nomination for a municipal election.
ELECTIONS-Primary (Unofficial)
(i) An election manager in a primary election may not take a ballot to
the home or place of business of a voter who is unablE: to go to the polls. (2) No one may vote in a primary election in a militia district or city ward other than the one in which he resides. (3) The managers of a primary election may not begin a count of the votes until the polls are closed, and the count must be public.
July 3, 1946 Hon. V. E. Durden Graymont, Georgia
Your letter of July 5th received. In your letter you prE:sent several questions all relating to the holding of an election or primary. The questions and answers will be stated and given in the order contained in your letter.
First: You ask whether or not it is legal for thE: election managers, or the Democratic Executive Committee in primary elections, to designate one manager to take ballots to the home or place of business of voters, who for sickness or other reasons, can not come to the polls in person and vote?
Answer: It is my unofficial opinion that election managers, or the Democratic Executive Committee holding a primary election, are without legal au-

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thority to take ballots, or to designate one of the managers to take ballots to the home or place of business of a person so that such person can vote in the primary. I construe Section 34-1905 to mean that the person voting in the primary must vote at the precinct or place of holding the election. The only other method provided is for a person to vote by mail where such person is unable, because of business reasons and habitual duties to be present in the city or county, ward or district on the day of the election. See Section 34-3301 of thE: Code.
Second: Can a voter who lives in the district in which there is an incorporated town go to the county site on .the day of the election and cast his ballot at the county site?
Answer: Section 34-802 of the Code deals with general elections and provides that if any person shall offer to vote at the courthouse precinct, at the county site, and the name of such person appears on the list of one of the militia districts located outside of an incorporated town, such pHson may be allowed to vote at the courthouse upon taking the oath that he has not voted elsewhere in the election. That Section deals only with general elections and does not apply to primary elections. Section 34-3204 of the Code dqals with primary elections and providE:s that no one shall vote in a primary in a militia district other than the one in which he resides or if in a city in a ward other than the one in which he resides.
Third: Is it legal for the managers of a primary election to begin a count of the votes until after the polls are closed and does the law require a public count of the votes?
Answer: Section 34-3202 of the Code providE:s in part as follows: "At the close of the election the managers shall proceed publicly to count the votes and dE:clare the results." In the case of Norton v. The State, 5 Ga. App. 596, the Court of Appeals held that the managers of a primary election were required to count the votes publicly and that if they wilfully failed to do so they would be guilty of a misdemeanor. They cite the case of Tilton v. The State, 5 Ga. App. 59, which defines what is meant by the word "publicly".
ELECTIONS-Primary (Unofficial) A primary election for state senator is held only in the county whose turn it is to furnish the nominee under the rotation system.
November 5, 1947 Hon. J. Will Overstreet, Senator 18th Senatorial District Wadley, Georgia
Mr. Cook has rE:quested me to supply you with the Jaw on the question of whether a senator is elected by the voters of his own county, or by the voters of the entire senatorial district. The following statutes supply the answer to this question:
"Section 34-3219. Every political primary election held by any political party, organization or association for the purpose of selecting candidates for the office of State Senator from any of the senatorial districts of this State, as provided for by the Constitution, shall be held only in the county whose

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turn it is to furnish the nominee of such party as a candidate for the office under thE; rotation system as same was of force prior to January, 1936."
"Section 34-3220. The candidate entitled to said nomination as the result of the primary under the rules and regulations prescribed by the executive committee or other party organization of the county whose turn it is to furnish such nominee under such rotation system shall be the nominee of such party for State Senator from any such district for the ensuing term and no other person shall qualify or have his name placed upon the ballot as the nominee of such party for said office."
"Section 34-3221. Unless the exE;cutive committee or other party organization of the county whose turn it is to furnish such nominee shall, by resolution, disclaim the right of the members of such party in such county to furnish such nominee, no county or the membHs of any such party in any such county shall furnish such party nominee for the office of State Senator at two successive elections for State Senator in said district, or after having furnished such nominee, again do so until every county in such district has furnished the nominee of such party in its turn: Provided, that notwithstanding any other provision of this law in every senatorial district composed of counties having equal reprE;sentation in the House of Representatives that no such county shall furnish the nominee for State Senator in said district at two successive elections unless the same is consented to by the executive committees of each of the other counties in said district."
The question of whethH a senator can rename or change the names of his present senatorial executive committee, would depend upon the rules of the Democratic Party. If these persons were placed on the committee for a definite period of time, under the rules of the party it would be necessary to obtain their consent before they could bE; removed.
ELECTIONS-Primary (Unofficial) Party authorities holding a county primary may fix the time for closing the registration lists.
December 4, 1947 Hon. Homer S. Durden, Jr. Attorney at Law Swainsboro, Georgia
I am pleased to acknowledge your letter of recent date, in which you ask for an opinion on the authority of the County Democratic Executive CommitteE; to set a closing date for the registration of voters who desire to participate in a primary on March 10, 1948, at which only county officers are to be nominated. You further state that the Board of Registrars set September 9, 1947, as the final date for registration for voters to qualify to vote in said primary, and you desire to know whether this date is correct for the closing of the registration lists.
Section 34-3209 of the Code provides as follows: "The party authorities shall, in all matters not provided for in this Chapter, formulate rules and regulations for holding said primary election and for making returns thereof to the proper party authorities."

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Since the election to be held in March of next year is a primary election, I am of the personal opinion that the above provision of law applies, and that the party authorities holding the primary may in cooperation with the registrars and the tax collector formulate rules and regulations governing the time of the closing of the registration lists. Section 34-406 of the Code which was mentioned in your letter, seems to apply to general elections and not party primaries.
ELECTIONS-Qualifications of Voters (Unofficial) Qualifications of voters outlined. November 5, 1945
Hon. W. L. Ferrell, Vice President Georgia Federation of Labor Savannah, Georgia
Your letter of October 31 received. You request that I advise as to the necessary requirements of a person who seeks to register for the purpose of voting.
Paragraph 2, Section 1, Article 2, of the Constitution of 1945 provides in substance that every citizen of this State who is a citizen of the United States, eighteen years old or upwards, not laboring under any of the disabilities named in the Constitution, and possessing the qualifications provided by the Constitution, shall be an elector and entitled to register and vote. The paragraph also provides that no soldier, sailor or Marine in the military or naval services of the United States shall acquire the right of an elector by reason of being stationed on duty in the State.
Paragraph 3, Section 1, Article 2, of the Constitution of 1945 provides that a person shall have resided in the State one year and in the county six months next preceding the election before being entitled to register.
Paragraph 4, Section 1, Article 2 of the Constitution of 1945 provides in substance that every citizen of this State shall be entitled to register as an elector, and to vote in all elections, who is not disqualified by Section 2 of Article 2 of the Constitution, and who possesses the qualifications prescribed in Paragraphs 2 and 3 of the Constitution, or who will possess them on the date of election; and who, in addition thereto, comes within the following classes:
( 1) All persons who are of good character and understand the duties and obligations of citizenship under a republican form of government.
(2) All persons who can correctly read in the English language any paragraph of the Constitution of the United States, of the State, and correctly write the same in the English language when read to them by one of the registrars. Persons who are physically disabled to read or write are permitted to register if they can give a reasonable interpretation of any paragraph of the Constitution of the United States or of the State, after same has been read to them by one of the registrars.
Section 2, of Article 2, of the Constitution of 1945, provides that the General Assembly may provide, from time to time, for the registration of electors. It specifically provides that the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or

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trust in this State; to wit, any persons who have been convicted of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or any other crime involving moral turpitude punishable by the laws of this State, with imprisonment in the pE:nitentiary. Insane persons are not permitted to register or vote.
The Act approved February 5, 1945 (Ga. L. 1945, pp. 129-135) abolished poll tax, and there is no longer any rE:quirement for the payment of any tax as a qualification for any voter. This, however, does not relieve any citizen from the payment of tax on his personalty and realty, or any other form of tax levied and required of such a citizen. This Act amend~ certain code sections relating to thE: requirement for registration. Each person who seeks to register is required by the Act to take the following oath:
"I do swear, or affirm, that I am a citizen of the United States; that I am eighteen years of age, or will be on the ________________ day of________________ of this calendar year; that I have 1:esided in this State for one year, and in this county for six months, immediately preceding the date of this oath, or will have so resided on the ------------ day of ------------ of this calendar year; that I possess the qualifications of an elector rE:quired by the Constitution; and that I am not disfranchised from voting by reason of any offense committed against the laws of the State. I further swear, or affirm, that I reside in ------------ district, G. M., or in the------------ ward of the City of---------------- at No. ------------ on------------ street; my age is ------------ my occupation ------------ my color is ------------"
For other requirements prescribed by the General Assembly for thE: registration of voters, I refer you to Chapter 34-1 of the Code of 1933. I have outlined to you the requirements made by the Constitution and by the statutes, all of which govern and control each and every voter who seeks to place himsE:lf in a position to exercise the privileges of an elector. I trust that the same has fully complied with your request.
ELECTIONS-Qualifications of Voters A person unable to read and write is entitled to register and vote if he meets qualifications set out in Art. 2, Sec. 1, Par. 4 of the State Constitution.
May 8, 1946 Hon. B. E. Thrasher, Sr. State Revenue Department
You request that I advise concerning the constitutional qualification of voters, particularly on the question of whether or not a person .who can not read or write is, under any circumstances, eligible to registE:r and vote in the elections in this State.
In addition to the constitutional requirements as to age and residence the Constitution of 1945 in Paragraph 4, Section 1, Article 2 enumerates other qualifications as follows:
"1. All persons who are of good character and understand the duties and obligations of citizenship under a republican form of government; or,
"2. All persons who can correctly read in the English language any paragraph of the Constitution of the United States or of this State and correctly

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write the same in the English language when read to them by any one of the registrars, and all persons who solely because of physical disability are unable to comply with the above requirements but who can understand and give a reasonable interpretation of any paragraph of the Constitution of the United States or of this State that may be read to them by any one of the registrars."
A person who can not read or writE: would be entitled to register and vote if he meets the qualifications set forth by the Constitution in subparagraph 1; that is, if he is a person of good character and understands the duties and obligations of citizenship under a republican form of government.
If a person can not qualify under subparagraph 1 but can qualify under subparagraph 2 he would be entitled to register and vote. A person may qualify under either one of the subparagraphs. A person who can not meet the requirements of subparagraph 2 would be entitlE:d to register under subparagraph 1, if such a person is of good character and understands the duties and obligations of citizenship under our form of government.
If a person is of good character and understands the duties and obligations of citizenship under our form of government and can not read or write, and desires to register as a voter, he is entit!E:d to do so and Section 34-108 of the Code of 1933 requires the tax collector, or his authorized clerk, to read or repeat the oath to the applicant and to sign the applicants' name, when the applicant takes the oath, upon request of the applicant.
ELECTIONS-Qualifica:ions of Voters (Unofficial) A person eighteen years of age is qualified to vote in national elections.
May 6, 1947 Mr. L. H. Riley 225 Edgemere Court Oklahoma City, Oklahoma
Your letter of April 20th, requesting an opmwn as to whether or not persons eighteen years of age are qualified to vote in the national elections has been received.
Article I, Section I, of the United States Constitution provides in part: "... The electors in each state shaii have the qualifications requisite for ejectors of the most numerous branch of the State Legislature." The same language is used in the XVII AmE:ndment to the United States Constitution, wherein the change in the method of electing Senators was provided for. The only prohibitions placed upon the States regarding the qualifications of electors are in the XV and XIX Amendments, which provide respectively, as foiiows: "Right of citizens to votes.-The right of citizens of the UnitE:d States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." "Equal suffrage. The right citizens of the United States to vote shaH not be denied or abridged by the United States or by any State on account of sex." From the above it is to be seen that persons eighteen years of age who are

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duly qualified and eligible to vote poss::ss under the laws of the State of Georgia qualifications requisite for electors of the most numerous branch of the State Legislature, and, therefore, are expressly permitted by the Constitution of the United States to vote in national elections.

ELECTIONS-Registration of Voters; Spedal Elections (Unofficial)
( 1) Payment of delinquent poll taxes is not a prerequisite to voting in a special election. (2) Registration for a special election closes five days after the election is called.*'

Mrs. Roy Parker, Sr. Americus, Georgia

September 25, 1945

Your letter of September 18th received. You request that I advise regarding the law of registration of voters for elections held und::r the prohibition law.
Th:: General Assembly in January passed an Act abolishing poll taxes. The legal effect of this Act was to prevent the levy of future poll tax and to make past due poll tax uncollectible as a matter of law. The Constitution of 1877 in Paragraph 3, Section 1, Article 2 (Section 2-603 of the Code) provided that to entitle a person to register and vote such a person shall have paid all poll tax that he may have had an opportunity of paying agreeably to law. The new Constitution ratified by the voters on August 7th and proclaimed by the Governor struck this provision as a prerequisite to voting. After August 13th, the date of the proclamation by the Governor, persons are not required to pay any poll taxes in order to be qualified to participate in elections as a voter. Neither back poll tax past due or future poll taxes unpaid disqualifi::s a person from registering and voting.
The election that you refer to to be held on October 4th is a special election under the law. The Constitution of 1945 provided that all statutes and laws which are not inconsistent with the Constitution shall remain of force and effect. Under statutes which are not inconsistent with the Constitution, persons are required to register six months before general elections. Th:: board of registrars are required in each year where a general State election is held to conv::ne on April 20th and to prepare a list of qualified voters and to file the same with the Clerk of the Superior Court. The list thus prepared and filed with the clerk entitles each person whose name appears thereon to vote at all primaries and all elections held during that and the succeeding year. Section 34-407 of the Code prescribes how the vottrs list for special elections shall be made up. Under this Section any person who has registered for any general election shall, if otherwise qualified, be entitled to vote at the special election. Within five days after the call of any special election, the tax collector

*But see the Act of 1946, p. 42, requiring persons not on the qualified voters list at the General Election of November, 1944, and who have not registered thereafter, to register at least five ( 5) days before voting at any special election.

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shall close his books and within five days thereafter he shall file with the county registrars a complete list of all names signed in the voters book since the close of the voters book for the last general election. Within five days thereafter the registrars shall file with the Clerk of the Superior Court a supplemental list showing the names of additional voters who are entitled to vote at the special election, and whose names did not appear on the list of voters prepared for the general election. The registrars are required to purge both the list prepared for the election and the supplemental list furnished by the tax collector of all names or persons who are not qualified to vote. After they have so purged the list they are required to file both lists of the qualified voters with the Clerk to be used in the election.
From a reading of this Section you will find that no person can register or qualify to vote in a special election unless he registers and qualifies within five days after the call of the election. The tax collector is directed to close his books at the end of five days after the call of the election. Persons who are duly registered but whose name did not appear on the qualified voters list because they had not paid prior poll tax would no longer be disqualified and should be restored to the voters list provided the call of the special election was made after August 13th, or provided that August 13th fell within five days of the call of the election. If the proclamation of the Governor on August 13th did not take place prior to the call of the election or within five days thereafter persons who had not paid poll tax but who were registered could not qualify because the disqualification had to be removed within five days after the call of the election.

ELECTIONS-Registration of Voters A person who had registered but became disqualified from voting solely because of non-payment of poll taxes is not required to re-register.*

Hon. M. E. Thompson Commissioner of Revenue

September 28, 1945

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

"We are having numerous requests from county officers and other citizens of this State on the following question, and I will greatly appreciate your official ruling on the same.

"If a person was previously disqualified from voting solely because of the non-payment of poll taxes and now since that disqualification has been removed by the new Constitution as amended, is it necessary for such person to re-register and again take the oath of a voter in order to have his name placed on the qualified voters' list?"

Since the poll tax is no longer a prerequisite for voting, a person who is otherwise qualified as an elector is entitled to have his or her name placed on

*The Act of 1946, p. 42, requires persons not on the qualified voters list at the General Election of November, 1944, and who have not registered thereafter, to register before voting at any general or special election.

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the qualified voters' list and to participate in all elections. A careful examination of the Constitution of 1945, the statutory laws as well as the decisions of our appellate courts, definitely show that when the disqualification for nonpayment of poll tax was removed a person who is otherwise qualified to vote is not required to re-register and again subscribe to the voters' oath.
Article 2, Section 2, Paragraph 1 of the Constitution of 1945 provides in part as follows:
"ThE> General Assembly may provide, from time to time, for the registration of all electors, . . ."
The only limitation placed on the authority of the General Assembly to provide for the re-registration of all electors is found in Article 7, Section '7, Paragraph 1 of the Constitution of 1945, which provides in part as follows:
"And provided further that all laws, charter provisions and ordinances heretofore passed or enacted, providing special registration of the voters of counties, municipal corporations and other political divisions of this State to pass upon the issuance of bonds by such counties, municipal corporations and other political divisions are hereby declared to be null and void; and the General Assembly shall hereafter have no power to pass or enact any law providing for such special registration, but the validity of any and all bond issues by such counties, municipal corporations or other political divisions made prior to January 1, 1945, shall not be affected hereby; ..."
The question presented by your inquiry does not concern a statute, charter provision or ordinance providing for a special registration of the voters, but rather resolves itself into the proposition of whether the board of registrars has the authority to require thE> re-registration of persons who were formerly disqualified from voting becausE> of the non-payment of poll taxes and who are at the present time otherwise qualified to vote since the poll tax has been repealed.
The Constitution of 1945 in Paragraph 1 of Section 2 of Article 2, grants the General Assembly discretionary authority to provide for a re-registration of all >lectors with the exception provided for in Paragraph 1, Section 7 of Article 7 above set forth.
The Legislature has exercised the above authority to require a re-registration in Section 34-116 of the Amended Code which provides as follows:
"In any county in this State where the 1egistration books have been destroyed by fire or otherwise, all voters in the county are hereby required to re-register with the tax collector or tax commissioner of such county as now provided by law so that there may be a permanent registration list."
Again, by an Act approved February 5, 1945, the Legisl:!tture requires a person to re-register who has failed to vote within a certain period of time and who has been notified that his registration will be cancelled and does not signify his desire to remain a registered voter. This part of the Act of 1945 reads in part as follows:
"Effective April, 1947, the tax collE>ctor or the tax commissioner, as the case may be, shall cancel the registration of all electors thus notified who have not applied for continuance and the names of all such electors shall be wholly removed from the list of qualified electors. Any elector whose registration has been thus cancelled may re-register in the manner providE>d for original

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registration. No person shall remain a qualified voter longer than he shall retain the qualification under which he registered."
I have cited the above two statutes in order to show that the Legislature has exercised tho power granted to it by the Constitution to provide for reregistration of all electors. It likewise is in the province of the Legislature to go further and pass an Act requiring a registration of all electors at any time it sees fit, or at any given stated interval of time, except as to a special registration for bond elections which is prohibited by the amendment to the Constitution as set forth above.
As I construe the law, when a person has once properly registered he remains registerf:d until and unless the General Assembly provides for a reregistration or enacts legislation such as the Act approved February 5, 1945, which requires re-registration under certain conditions. Until the Legislature enacts statutory authority to the contrary, I am of the very definite opinion that once a voter is re-registered he remains pHmanently registered so long as he complies with the existing statutory conditions as contained in the Act of 1945 as hereinbefore referred to, and provided the registration books are not destroyed as set forth in Section 34-116, supra.
ThHe may be some question as to whether or not the Legislature has delegated its constitutional authority to require a re-registration to the board of registrars. Section 34-115 of the Code as amended, provides in part as follows:
"The electors who have qualified and have signed the permanent voters' book shall not thereafter be required to register or further qualify, except as may be required by the board of registrars. No person shall remain a qualified voter longf:r than he shall retain the qualification under which he registered."
(This Section was amended by the General Assembly of 1945, but the language used in the prevoius Act was incorporated in the new statute.)
A serious constitutional question would immediately be presented should it be determined that the Legislature intended to delf:gate its constitutional authority for requiring a re-registration to a board of registrars, due to the fact that a person previously registered in accordance with law had failed to pay poll taxes, since these taxes are no longer required to be paid. In this connection, see Richter v. Chatham County, et al., 146 Ga. 218, where the Court held:
"The Act of the Legislature approved August 11, 1915, authorizing the county officers of Chatham County to establish a system of registration for that county, which system alone was considered by the Court in arriving at the number of qualified voters, is unconstitutional, because it is a delegation of legislative authority."
I feel certain howevH, that Section 34-115, supra, was never intended to delegate legislative authority to the board of registrars so as to lodge a discretion in that board as to whether or not a person already registered should again be required to re-register simply because in the past he was disqualified solely by reason of the non-payment of poll taxes.
Section 34-115, supra, in my opinion, only relatf:s to the authority of the board of registrars to determine the qualifications of a voter and does not extend beyond this point. Of course if a person had not registered properly in

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the first place by signing his name in the voters' book and taking the oath as prescribed by law, then the registrars could refuse to qualify such a person as a qualified elector, but this is simply holding that the board of registrars has thE: right to inquire into the qualifications of the elector and if he has not signed the permanent registration book or taken the oath as provided by law, then he has never become registered in the first place. Section 34-408 of the Code provides as follows:
"The board of registrars shall have the right and shall be charged with the duty of examining each two years the qualification of each elector whose name is entered on the voters' books, and shall not be limited or stopped by any action taken at any prior time."
The law makes it very clear that the board of registrars has complete original power over the qualifications of all electors. As will be shown hereinafter, there is a vast difference between the proposition of whethtr a voter has signed the permanent registration book and taken the oath prescribed by law as compared with the question of whether or not he is a qualified voter. At this time I wish to particularly point out the difference between a registered person and a qualified elector. In Wheeler et al. v. Beazley, 181 Ga. 313, the Court held in this connection:
"One does not become a registered voter merely by taking the voter's oath and signing his name in the voters' book. A person becomes registered as a voter only by meeting this and other requirements of thE: law and by the action of the registrars in placing his name on the list of registered voters."
On page 314 of the above opinion, the Supreme Court of this State held: "The Act does not of itself require a new signature in the voters' book as a condition precedent to restoration to the list of registered voters, after removal of a disqualification occurring subsequently to the proper placing of one's name on such list, and there is no other law which makes such requirement."
In view of the above ruling by the Supreme Court, it must necE:ssarily follow that where a person has become registered and has taken the oath of a voter as prescribed by law, he cannot be required without proper statutory authority to re-register and again subscribe to the voter's oath in order to become a qualified voter, simply because he was formerly a delinquent poll tax payer.
In the question now under discussion, it is conceded that the elector was originally registered and that he subsequently became disqualified because of the nonpayment of poll taxes. His disqualification in the past does not in any way detract or take away from the fact that his name is on thE: permanent registration book of the county tax collector or commissioner, as the case may be. As soon as his disqualification for the non-payment of poll taxes was removed by the abolition of the poll tax, this person, in my opinion, became a qualified elector, provided of course, he met the other requirE:ments of law.
Section 34-101 of the Code provides in part as follows:
"The tax collectors of the several counties are required to keep a book to be called the permanent qualification or voters' book, upon which all persons desiring to qualify as electors shall be required to qualify as required by the Constitution and laws of this state...." (Emphasis supplied).

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The above provisiOn of law clearly shows the intention of the Legislature to require the tax collectors of the several counties to keep a permane:nt voters' book. The very fact that the word "permanent" is used clearly indicates that the Legislature intended such registrations as contained there:in to be of an enduring nature. Of course, as stated above, the Legislature has already provided for a re-registration where these books are destroyed by fire or otherwise. The purpose of this re-registration with the tax collector is said by the General Assembly to be "so that there may be a permanent registration list." Like:wise, the Legislature has provided in the Act of 1945 for a re-registration where the voter has failed to comply with certain conditions contained in t~ Act, previously referred to in this opinion.
In addition to the above requirements for re-registration prescribed by the Legislature, it may go further in its discretion and provide for a re-registration of all electors at any given time. On the other hand, it is the function of the board of registrars to examine the qualifications of all electors whose name appears on the voters' books. The board determines thE: qualification of the elector to participate in elections rather than exercise its discretion in requiring a re-registration of all electors or any part of them.
In Drake v. Drewry, 112 Ga. 313, it was held:
"The registrars cannot lawfully withhold from a list of registered voters the name of any person appearing upon the voters' book, and not appearing on the list of disqualified voters, unless 'convinced by sufficient legal proof that such person is, in fact, not qualified to vote... .' In the case of such a person, the inquiry is, not did he register unlawfully, but is he now qualified to vote? If so, it would seem that his name must be placed on the registered vottrs' list without regard to the question whether he was entitled to sign the voters' book or not."
In Jones v. Darby, 174 Ga. 76, the Court held:
"Our registration laws do not deal with the qualification of voters. They can add nothing to such qualification. They can take nothing therefrom. Registration adds no new qualification. It serves only to identify the persons who are qualified to vote."
In Bearden v. Daves, 139 Ga. 635, it was held that where plaintiffs were registered voters and otherwise qualified to participate in an election, and where the registrars willfully withheld their names from the qualified voters' list, such registrars were subject to the writ of mandamus. This case was decided several months prior to the enactment of Section 34-115, supra. The case however, does illustrate the fact that the board of registrars must place the name of all persons who are qualified on the qualified voters' list. In my opinion, Section 34-115, supra, does not change this rule by placing a discretion with the board of registrars as to the requirement of re-registration.
In the case of Wheeler v. Beazley, 181 Ga. 311, supra, the Court held:
"Where a person who has signed his name in the voters' book and has otherwise complied with the law as to registration and whose name has been lawfully placed upon the list of registered voters, but who thereafter becomes disqualified as a voter because of non-payment of taxes, it is lawful for the registrars to nstore the name of such person to the registration list upon his

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subsequent payment of the required taxes, although,he does not again take the voter's oath and sign his name in the voters' book."
From the above provisions of the Constitution of 1945, the statutory laws cited herein and the judicial decisions referred to, I am of the opinion that all persons who were previously disqualified from voting solely because of the non-payment of poll tax but who are, under the provisions of the 1945 Constitution, now qualified, should have their names placed on the qualified voters' list by the board of registrars, and that such persons should not be required to re-register or again take the oath of a voter. .
It was one of the paramount purposes of the framers of the new Constitution, as well as the people who adopted it, to liberalize the voting laws of this State and not to build up barriers to prevent qualified citizens from exercising their right of elective franchise. To hold that the matter of re-registration of electors was placed within the discretion of the board of registrars would be to circumvent the will of the people since they have lodged such discretionary authority only with the Gen~ral Assembly of this State.

ELECTIONS-Registration of Voters (Unofficial) A person who has not been out of the military service for a period of sixty days is entitled to register up to and including the date set for a special election and to vote in the election.

Hon. Harold Sheats Fulton County Attorney Atlanta, Georgia

February 5, 1946

Your letter, in which you request my opm10n as to whether a person who is now in the military service or who has not been out of the military service for a period of sixty days, is entitled to register and vote in the Special Election to be held on February 12, 1946, even though the Tax Collector has closed his voters' books, is acknowledged.
It. is my opinion that a citizen of Georgia who is otherwise qualified to vote, and who is either in the military service or who has not been out of the military service for a period of sixty days, is entitled to register and vote in the county of which he or she is a citizen up to and including the date set for the election.
This became possible when the Georgia Legislature, at the Extraordinary Session of 1944, passed an Act which provides for "Georgia men and women in the military service of the United States of America to participate in elections and primaries." The Act was approved January 7, 1944, and superseded Title 34 of the Code of 1933, as it applies to persons in the military service of the United States of America.
The specific provisions of the Act which are applicable to the question propounded in your letter are as follows:
"Section 1. The purpose of this Act is to make provision for Georgia hlen and women in the military service of the United States to participate in County, State and National Elections, and in Party Primaries in liberalizing the statutes of this State and by making provision for such participation.

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"Section 2. This Act shall be liberally construed to carry out the purpose of the General Assembly in its enactment.
"Section 7. Nothing contained in the: present laws of Georgia as to the time that the Registrars shall complete their work and file the list of registered voters shall in any way abridge the right of a member of the military to be certified by the Registrars at any time as a registered voter. The Registrars shall include on the list of registered voters all members of the military who have registered in accordance with the provisions of this Act and who are otherwise qualified." (Emphasis supplied).
I believe the Georgia Act and the Soldiers and Sailors Civil Relief Act should be construed together.
Under Title 50, Section 313, Sub-section B-3 of the Soldiers and Sailors Civil Relief Act, the period of military service is defined "as ending 60 days after the date on which said pe:riod of training and service or active duty terminates." Therefore, for the purpose of effectuating the broad spirit of the Georgia Act, it must be liberally con!'trued. The term "in the military service of the United States of America" as used in the Act must include the 60-day period provided in the Soldiers and Sailors Civil Relief Act, supra.
The paternal policy of the Soldiers and Sailors Civil Relief Act, and the intent of the: Georgia Legislature in its Act, supra, "to make provisions for men and women in the military service of the United States of America to participate in County, State and National elections", should control in enforcing the Georgia Act.
The Act sought to afford the members of the military service the right to vote and to protect them against laws, the operation of which, denied them the right during their absence. The Ge:orgia Act is a relief measure, enacted to prohibit the right of franchise being imperiled as a consequence of serving in the military service of the United States of America. The underlying purpose of the Act not only preserved their right to vote during their absence, but it removed any inhibition which would interfere with that right as a consequence of military service. So, therefore, all persons now in the military service or whose service did not terminate in the 60 days prior to five days after the call of the special election, and who are otherwise qualified should be permitted to vote in accordance with the Act quoted above.
Those persons seeking to register and vote under the terms of this Act who are out of the military service, but whose service did not terminate more than 60 days prior to five days after the call of the special election, should present evidence to the proper authorities, showing the date on which such period of training and service or active duty terminated.

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ELECTIONS-Regidration of Voters (Unofficial) Persons whose nam~::s were not on the qualified voter's list for the 1944 general election may register up to four months before a general election and five days before a special election.
February 28, 1946 Hon. J. Lon Duckworth Chairman, Democratic Executive Committee Atlanta, Georgia
In your letter of this date you request an opinion regarding the construction to be given to Act No. 633, approved February 1, 1946, relating to the registration of voters.
Section 1 of the Act provides as follows: "That all persons who, at the General Election of November 1944, in any county, city or town of the State who were not on the current qualified voters' list of said county, city or town or who have not registered since that time or who shall not hereafter register, shall, before voting at the next or any succeeding General or Special Election, first qualify by registering with the proper officials of the county, city or town of the State at least four (4) months before any such future General Election and five (5) days before any such Special Election."
We construE; this section of the Act to provide that all persons whose names do not appear as qualified voters on the voters' lists filed for the General Election of November 1944, and all persons who have not registered since the filing of that list must register with the proper official four months before the General Election to be held in November of this y6ar, November 5, 1946. The Act does not refer to any re-registration, nor does it refer to any person who may have heretofore been registered. The act requir6s all persons whose names do not appear as qualified voters on the voters' list for the November 1944 General Election to register at some time after the filing of the 1944 voters' list, provided they register four months prior to November 5, 1946. The fact that a person may have at some time in the past been a registered voter, if his name does not. appear on the 1944 list, would not relieve such a puson of registering at some time after the filing of the 1944 list.
The Act is in direct conflict with Section 34-106 of the Code of 1933, which required tax collectors and tax commissioners to close their voters' book six months before the date of the General Election. The act makes no direct repeal of the Code Section. Repeal of a statute by implication is not favored, but may be had where the latter act is in direct conflict with the former.
The Act is also in conflict with a portion of Section 34-404 of the Code. Section 34-404 of the Code required the tax collector or tax commissioner to close the voters' book within five days after the call of a special election. The 1946 Act permits voters to register up to five days before the special election.
Attention is called to the statutes regulating the duties of registrar. Section 34-401 of the Code requires the registrars to meet on the 20th day of April or Monday thereafter, and begin the work of perfecting a true and correct list of the voters of a county. Section 34-403 of the Code requires the registrars to complete their work not later than June 1. It also makes provision for the appointment of extra boards of registrars, when necessary, to

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complete the work by June 1. A proviso was added to the section to the effect that if the registrars failed and refused to make and file a list within the time required by law, the list could be filed by the 20th of August.
Section 34-406 of the Code, as amended in 1943, (Ga. L. 1943, p. 353) requires the clerks of the superior court to file with the Secretary of State his certificate undtr seal showing the total number of registered voters in his county. The clerks are required to file this certificate not later than July 1 of every year wherein there is held a general State election and primaries to nominate candidates for offices to be filled at the General Election.
The Supreme Court in Leverett v. Leonard, 192 Ga. 359, held that the object of the sevtral sections of the Code relating to the duties of the registrars is to insure and sustain the integrity of public elections.
I have pointed out the inconsistencies of Act No. 633 with the other statutes, smce under the 1946 Act voters have the right to register for the General Election of this year at anytime up to and through July 5 of this year. I am of thE: opinion that the registrars should meet and perform their duties in a manner and as prescribed by statutes. Should they meet and file the list by June 1, as provided for by the statute, they would be required to make a supplemental list of all persons who registered from the date of filing of the list through July 5. If they did not file their list until after July 5, the list would include the voters registering through July 5.
The act deals with municipal voters. The charters of the different cities deal in different ways with the voters of their city or town. The 1946 Act is general and conflicts with many of the local acts. The qualification of voters for the different municipal elections is a matter for the proper officers of each town or city, and we express no opinion in regard to municipal voters. This opinion deals only with persons registering with State officials for State elections.
It is thereforE: my opinion, that under the 1946 Act persons may continue to register for State elections through July 5 of this year; and that all persons whose names appeared on the 1944 voters' list, all persons who may have registered at any time after the filing of the 1944 list, even though such registration may have been made prior to the approval of the 1946 Act and since the filing of the list for 1944, and all persons who may register after the passage of the 1946 Act, if thE:y register by July 5 of this year, if otherwise qualified under the Constitution, should be placed on the voters' list for the General Election of 1946 and said list would be used for all primaries and elections held during 1946.
ELECTIONS-Registration of Voters (Unofficial) A person removing his residence to another county may have his registration transferred, or may register in the new county after residing there for six months. March 1, 1946
Hon. H. E. Allen, SE:cretary Labor's Civic Affairs Committee Savannah, Georgia
You request an opinion as to whether or not a person who is a legal

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resident of one county but who had been previously registered in some other county must furnish a transfer from that county in order to register in Chatham County.
Paragraph 2, Section 1, Article 2 of the Constitution of 1945 provides as follows:
"Every citizen of this State who is a citizen of the United States, eighteen years old or upwards, not laboring under any of the disabilities named in this Article, and possessing the qualifications provided by it, shall be an elector and entit!E:d to register and vote at any election by the .People: Provided, that no soldier, sailor or marine in the military or naval services of the United States shall acquire the rights of an elector by reason of being stationed on duty in this State."
Paragraph 3, Section 1, Article 2 of the Constitution of 1945 provides that to entitle a person to register and vote at any election he shall have resided in the State one yE:ar and in the county six months next preceding the election.
Paragraph 4, Section 1, Article 2, provides in part: "Every citizen of this State shall be entitled to register as an elector, and to vote in all elections in said State, who is not disqualified under the provisions of Section II of Article II of this Constitution, and who possesses the
qualifications prescribed in Paragraphs II and III of this Section * *' *."
SE:ction 34-804 of the Code of 1933 provides as follows: "If any person shall change his residence from one militia district to another or from one county to another after signing the oath in the permanent qualification or voters' book and should desire to vote in any election in the district or county into which he removes at which he would be qualified to vote, he shall have the right, upon application to the registrars and satisfactory proof before them that he will be qualified to vote at said election, to have his name placed upon the list of registered voters for the district or county into which he has removed, for said election, with the same rights as others registered for said election." I am of the opinion that a person who may have been registered in one county of Georgia would not be required to obtain from that county a transfer to another county in Georgia in order to register for voting, where such person has rE:sided in the new county for six months and has been a resident of the State for one year. Under Section 34-804 of the Code such a person would have the right to have a transfer of his registration from one county to another by applying to the registrars and furnishing satisfactory proof that he will be qualified to vote at an election in said county.
ELECTIONS-Registration of Voters (Unofficial) The registrars are not required to publish the list of qualified voters filed with the clerk of the superior court.
April 1, 1946 Ron. Henry Wright, City Editor The Augusta Herald Augusta, Georgia
Your letter of March 26th received. You request that I advise whether or not the Board of Registrars are required to publish the list of voters to be used

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in the county primary being held on April 16th. UndE:r Chapter 34-4 of the Code of 1933 the registrars are required, in
each year in which a general election is to be held, to meet on April 20th and perfect a true list of the registered voters entitled to vote in the general election and primaries of the year. Under Section 34-404 when the registrars have completed, the list of votE:rs they are required to file the list, within five days after completion, with the Clerk of the Superior Court of the county. So far as I can find there is no statute which requires registrars to publish any list of the registered voters. Under Section 34-405 each person whosE: name is upon the registration list filed with the Clerk of the Superior Court is entitled to vote in the general State election and all primaries to nominate candidates for offices to be filled at the general State election.
UndE:r Section 34-701 of the Code of 1933 the registrars are required to furnish a list of the voters to the election managers. Section 34-3206 provides that no manager of a primary election shall receive the ballot of any elector until he has first ascertained that the name of such elector appears on the list furnished for such election by the registrars or filed by the registrars in the office of Clerk of the Superior Court.
I am, therE:fore, of the unofficial opinion that the registrars are not required to publish, other than stated above, a list of the voters to be used in any election.

ELECTIONS-Registration of Voters (Unofficial) The voters oath must be subscribed before the tax collector or his duly authorized clerk.

Hon. Fred C. Brinson Tax Collector, Effingham County Springfield, Georgia

April 2, 1946

I am pleased to acknowledge your letter of March 30th, together with a letter from the ExecutivE: Director of the Young Democratic Club of Georgia. You state that you have received the following communication:
"The Young Democratic Clubs of Georgia are beginning a campaign to facilitate registration of 'teen age voters in Georgia.
"To do so we shall employ various methods, one of which is sending all people of that age group a double postcard, explaining our purpose on one side, with the other side having printed on it the voter's oath for them to sign beforE: a notary or other proper official and mail to your office.
"That is, provided, you will accept this card as proper registration. Many

counties are already doing this, but we have not yet sent any out in your 'county.
"Will you, please, signify on the enclosed card as to whether or not you
will accept this in your county, and drop the card in the mail? * * *."
You are requesting my opinion on the above stated matter before replying to Mr. Williams' letter.
It is my pleasure to give you my personal and unofficial views on the questions presented, because as you know, under the law I am prohibited from

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rendering an official opinion to any one other than the Governor and heads of the various departments of State upon matt~::rs pertaining to the interests of the State.
Section 34-104 of the Code provides as follows: "Who May Take Charge of Books and Administer Oaths.-The tax collector, or any clerk employed by him and authorized by him to receipt for taxes in the usual course of his employment, is hereby Eompowered to take charge of the voters' books and to administer the oath required to qualify an elector." The above Code Section authorizes the tax collector to employ clerks to assist in the matter of administering oaths required to qualify an elector. The statute rEoquires however, that the clerk be employed by the tax collector which necessarily implies that he must be designated by that official to serve in this capacity. There is no limitation on the number of clerks to be employed by the tax collector, but rather the entire matter is left to the discretion of this public official. He may decide not to employ a clerk at all for this purpose, or, on the other hand, he might retain several, the matter being left solely to the exercise of his sound discrEotion.
Section 34-105 of the Code provides:
"Books to be kept open for signatures.-The tax collector may open as many of said voters' books as he may deem necessary, and he shall always keep ,one of such voters' books open for signatures at his office at the county site, at any and all times when his office is open for the payment of taxes or other business; and he shall also carry with him and keep open for signatures one such voters' book in each and all of his visits to the several militia districts of his county for the purpose of collecting taxes."
The number of voters' books to be kept open for signatures is likewise in the discretion of the tax collector except that he is required to keep one of such books open for signatures at his office at the county site, and further, carry with him and keep open for signatures one such voters' book in each of his visits to the several militia districts for the purpose of collecting taxes.
Section 34-107 provides in part as follows:
"Any person desiring to be registered as a voter may apply to the tax collector or his clerk, and, after reading the oath required to qualify an elector or having the same read to him, shall subscribe the same by signing his name in the voters' book, underneath the written or printed oath above described, or on some page following the one on which said oath is printed or written, or upon a separate printed oath; .."
Here again, the method to be employed in registering persons desiring to qualify as electors is to be determined by the tax collector. The above statute provides for any or all three of the following methods:
(1) A person desiring to qualify may sign his name in the voters' book underneath the written or printed oath as provided by law.
(2) A person may sign on some page following the one on which said oath is printed or written as provided by law.
(3) A person may sign "upon a separate printed oath." This oath could hEo printed or written on a separate sheet or card, and could be signed by the

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person desiring to qualify as an elector .iter ::.~ tax coliector or his clerk has given him the oath required by the above statute.
Under all of these methods, it is necessary that the oath be subscribed either before the tax collector or his duly authorized clerk. In this respect Section 34-109 of the Code provides:
"The tax collector or his clerk shall in no instance permit a person to sig'l the voters' book or any separate printed oath unless such person shall have actually made the oath before him thereon contained."
Of course nothing said in this letter applies to military personnel as set forth in the Act passed at the extraordinary session of the General Assembly of Georgia in 1944, approved January 7, 1944.
ELECTIONS-Registration of Voters Codo Sec. 34-106 providing for closing the voter's book six months before a general election has been superseded in all counties except Fulton by the Act of 1946, p. 42, permitting registration until four months before a general election.
April 19, 1946 Hon. Ellis Arnall Governor of Georgia
Your letter of April 19th received. You request my official opmwn as to the last day for registration in order to vote in the Democratic Primary to be held during the summer.
Section 34-106 of the Code of 1933 provides as follows: "The tax collector shall, in oach year in which there is a general election to be held for Governor and members of the General Assembly, close the voters' books for said election six months before the date of the election." Section 34-106 of the Code has been superseded and by implication repealed, in all counties other than Fulton, by Act No. 633, approved February 1, 1946. Section 1 of Act No. 633 provides as follows: "That all persons who, at tho General Election of November 1944, in any county, city or town of the State who were not on the current qualified voters' list of said county, city or town or who have not registered since that time or who shall not hereafter register, shall, before voting at the next or any succeeding General or Special Election, first qualify by registering with the proper officials of the county, city or town of the State at least four (4) months before any such future Goneral Election and five (5) days before any such Special Election." Under Act No. 633, which superseded and repealed Section 34-106 of the Code, a person must register for the general election to be held November 5, 1946, at least four months before such general election. It follows that under Section 1 of Act No. 633 that any person may registu for the general election in 1946 at any time up to and through July 5, 1946, which is four months before the general election. Section 2 provides that the provisions of Act No. 633 shall not apply in counties of 200,000 or more according to the 1940 Federal Census, or any future Federal Census. Fulton County being the only county in Georgia with

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the population of 200,000 or more is, thereforE:, excluded from the provisions of Act No. 633 and as to Fulton County Section 34-106 remains of force and persons desiring to register in Fulton County to vote in the general election of 1946 would be required to register by May 5, 1946.
Section 34-405 of the Code in substance provides that each person whose name is upon the registration list for the gE:neral election of 1946 shall be entitled to vote at such election and all primaries for the nomination of candidates for the offices to be filled at the general election.
I am, therefore, of the opinion that persons in all counties, other than Fulton, may register at any time up to and through July 5, 1946, and that persons registering within that period are entitled to vote in the primary to be held this summE:r. In Fulton County persons desiring to vote in the primaries w~uld be required to register by May 5.

ELECTIONS-Registration of Voters (Unofficial) A name may not be withheld from the list of registered voters because of change of residence unless the board of registrars is convinced by sufficient proof of a change of legal residence.

Hon. C. H. HE:nderson, Chairman

May 29, 1946

Board of Registrars, Echols County

Statenville, Georgia

Your letter of May 27th received. You request an opm10n as to the

authority of the Board of Registrars to strike from the voters' list the names

of persons registered in Echols County who return and pay taxes in Echols

but for different reasons are actually residing in other counties.

Our Courts, by many decisions, have recognized the distinction between

legal and actual residE:nce. A person may be a legal resident of one place and

an actual resident of another. He may abide in one county without surrender-

ing his legal residence in another if he so intends. See Hardeman v. Hardeman,

179 Ga. 34 (7).

There is also recognized a distinction betweE:n domicile aud residence.

Under Section 79-406 of the Code it is provided: "The domicile of a person sui juris may be changed by an actual change

of residence with the avowed intention of remaining. A declaration of an intention to change the domicile is ineffectual for that purpose until some act

is done in execution of thE: intention." It was said in Worsham v. Ligon, 144 Ga. 707: "Residence and domicile are not synonymous and convertible terms. In
order to change his domicile a person must actually remove to another place

with a present intention of remaining there as his place of domicile, or, having

removed to the new place, avow his intention of remaining therE: as his place of

domicile."

In Bush v. The State, 10 Ga. App. 544, it was said by Justice Russell:

"Loss of citizenship does not result from a change of residence not in-
tended to be permanent *' * *. There must bE: either the tacit or the explicit
intention to change one's domicile before there is a change of legal residence."

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Again in the case of Knight v. Bond and Brother, 112 Ga. 828 (1), it was
held: "A man having wife and children with whom he permanently resided in
a given county did not, by accepting a contract in another county, renting a furnished house therein, and occupying the same with his family during the period covered by the performance of such contract, acquire a domicile in the latter county, when he did not intend to abandon his domicile in the county first referred to or that he or his family should permanently reside elsewhere, but did intend that his or their stay in the county wherein the contract was to be performed should be temporary only and terminated upon the completion thereof."
See also Alvaton Mercantile Company v. Caldwell, 34 Ga. App. 151 (9). Under Section 34-401 of the Code the registrars are required to perfe.ct a true and correct list of the qualified voters of their county, and they have the authority to question the right of any person whose name appears upon the list furnished by the tax collector, but before the registrars may strike the name of such person off of the voters' list furnished by the tax collector they are required to notify such person as provided in Section 34-604 of the Code and give him or her an opportunity to appear and show why his or her name should not be stricken from the list. Under Section 34-402 of the Code the board of registrars have the authority to withhold from the list of registered voters the name of any person which appears upon the list of voters furnished by the tax collector but only when they are convinced by sufficient legal proof that such person is, in fact, not qualified to vote. The language of the last part of the foregoing sentence necessarily implies a lack of authority in the board to arbitrarily withhold a person's name from the list of registered voters. Such authority may be exercised only after sufficient legal proof in the nature of affidavits or witnesses testifying to facts which amount to a legal disqualification of the voter, therefore, it necessarily follows that the question propounded in your letter is one to be determined by the registrars after the hearing of evidence regarding the qualification of the voter. If the evidence shows that the votH intends that Echols County shall remain the legal residence of such a person, and that the. person is away from home in another county without the intention of making the other county his legal residence, then such person should be retained on the voters' list. On the other hand, if the evidence shows that the person who has left Echols County with the avowed intention of making some other county in the State of Georgia his legal residence then such a person would necessarily be called upon to register in the county into which he may have moved and he would no longer be a qualified voter in Echols. If the person has moved away from Echols with the intention of remaining only so long as his work or conditions require, and with the avowed intention of returning to Echols County and retaining same as his legal residence, on the completion of his work in the other county, the registrars would not have the right to arbitrarily strike such a person's name from the voters' list. This opinion is in line with one rendered by Governor Arnall, while serving as Attorney General. Opinions of che Attorney General, 1939-41, page 182.

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ELECTIONS-Registration of Voters (Unofficial) A person whose name does not appear on the voter's list may not vote although he has registered and possessE:s all other qualifications of a voter.
November 13, 1947 Rev. T. L. Lee, Pastor Darien Methodist Church Darien, Georgia
In your letter of November 4, you inquire about your eligibility to vote. You state that you were transferred to Darien Methodist Church June 4, 1946, and that you have been a citizE:n of Georgia since that time, and have been a citizen of Darien more than six months. You state that you were transferred from Florida to Georgia, and that you registered October 22, 1947. The Act approved August 10, 1929, (Ga. L. 1929, pp. 1016, 1018), amending the charter of the City of Darien provides in Section 1 in part as follows: "Be it further E:nacted by the authority aforesaid, that an election shall be held on the first Tuesday in November, 1929, and every two years thereafter for the purpose of electing the mayor and four aldermen for the city, such election to be held under the same rules as govern elections for members of the General Assembly from said county; and all persons qualified to vote for members of the General Assembly, residing within the limits of the city of Darien, or within three milE:s thereof, shall be entitled to vote in said election." I checked Shephard's Citation to determine whether or not the above stated provision of the charter of the City of Darien had been changed by legislation and I do not find where there had been made any change. Paragraph 4, Article 2 of Section 1 of the Constitution of 1945 provides in part: "Every citizen of this State shall be E:ntitled to register as an elector, and to vote in all elections in said State, who is not disqualified under the provisions of Section 2, Article 2 of the Constitution and who possessE:s the qualifications prescribed in paragraphs 2 and 3 of Section 1 of Article 2 of the
Constitution or who will possess them at the time of the election * * *."
Paragraph 3 of the Constitution provides in substance that a person to be entitled to register shall have been a resident of the State one year, and of the county six months next preceding the election.
Under Section 34-103 of the Code of 1933 the General Assembly sets forth the affidavit required of a person seeking to register as a voter. The person must swear that he has been a resident of the State one. year, and in the county six months, or will have so resided on a day named in the affidavit.
Under Section 34-106 the tax collector in the year in which there is a gE:neral election for members of the General Assembly is required to close the registration books six months before the date of the election.
After a person has registered with the tax collector the board of registrars is required to make up a list of the registered voters. Under Section 34-405 of the Code each person whose name is upon the registration list made up by the registrars and filed with the clerk of the superior court shall be entitled to vote. PE:rsons whose names do not appear on the list made up by the registrars and filed with the clerk are not entitled to vote, even though they may have

278
registered and have all other qualifications as voters. The foregoing statement is fully substantiated by the decision of the Supreme Court in the case of Chapman v. Sumner Consolidated School District, 152 Ga. 450.
You will better understand the distinction between registering and appearing on the list if you will go to the office of the ordinary or clerk of tht court and read the decision of the court in the Chapman case.
While it appears from your letter that you have been a citizen of the State and county for a sufficient time to be entitled to vote, and it further appears that you registered in October of this year, this being a year when the registrars are not required to mtet, the chances are that your name did not appear on the list furnished the election man~gers, the registrars not having been requested to prepare and file a supplemental list.
ELECTIONS-Soldiers Vote Law The Soldiers Vote Law did not terminate with the cessation of actual armed hostilities but is still in tffect.
April 20, 1946 Hon. Ellis Arnall Governor of Georgia
I have your letter of April 18, 1946 in which you request my opinion as follows:
"I will appreciate your official opinion on whether the Soldier Vote Law is still in effect and as to tht time required by law for holding the State Democratic Primary".
It is my official opinion that the Act passed at the 1944 Extraordinary session of the General Assembly which provided for Georgia men and women in the military suvice of the United States of America to participate in elections and primaries is still in force and effect and that the State Democratic Executive Committee is required by said law to call the State Democratic Primary within sufficient time to comply with Section 8, paragraphs 1 and 2 of said law, which provides in part as follows:
"All candidates for National and State offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State, at least 90 days prior to the regular election . . ."
"Whenever any political party shall hold primary elections for nomination of candidates for office for Governor, State House Officers, Members of Congress, United States Senators, Judges of the Superior Courts, Justices of the Supreme Court, Judges of the Court of Appeals, Solicitors General, and Members of the Gtneral Assembly, which are by law voted on one and the same day throughout the State, said primary may !,1' held on such date as may be fixed by the State Execu:ive Committee of such party, and the State Executive Committee is authorized to fix such time for the said primary, second primary, or party convention as it may determine without respect to the time now provided by law as to the date on which the said primary, second primary, or convention shall be held". (Emphasis supplied).
The General Election will be held on November 5, 1946 and by the tr,rms

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of the above stated law, it will be necessary for the State Democratic Executive Committee to certify to the Secretary of State the Democratic nominee: at least 90 days prior thereto, which will be August 7, 1946.
Since the law requires that the nominees be certified to the Secretary of State by August 7, 1946, it is imperative that the primary be set on a date which would give sufficient time for a second primary and party convention.
Section 21 of the Soldier Vote law provides that:
"The terms and provisions of this Act shall expire and become: extinguished upon the convening of the General Assembly in regular session next after the termination of the present war". (Emphasis supplied).
In determining whether or not the Soldiers Vote law is still in effect, it is necessary to determine whether or not the: following conditions in Section 21 have been performed:
(1) Has the present War terminated? ( 2) Has the General Assembly convened in regular session next after the termination of the present War? It is my opinion that the present War has not legally terminated. In 67 C. J. War, Sec. 195, it is stated:
"'Var in the legal sense, continues until and terminates at the time of, som& formal proclamation of peace by an authority competent to proclaim it. It is the province of the political department and not of the judicial department of Government to determine when War is at an end, and a legislative Act designating a particular day as that upon which a War terminated should be accepted by the courts in the United States. The power to reestablish pe:ace like that to declare War, rests exclusively with Congress, and the President ha& no such authority except as has been given him by Congress".
In the case of First National Bank v. Anglo Bank, 37 F. 2d 567, the court held:
"First, a War can only end by treaty of peace between the belligerents, and while the: War continues the courts of each belligerent are closed to the nationals of the other . . .
"Second, the signing of the treaty of St. Germane in 1919 did not terminate the War. Even if effect is given to it by reason of its incorporation into the Treaty of Vienna, it did not become effective until the ratification of the later treaty on November 8, 1921".
In the: case of Protector, 79 U.S. 700; 12 Wall. 700, the question as stated by the court was "When did the rebellion (the war between the States) begin and end?" The court answered the question thus "The beginning and termination of the late rebellion in reference to Acts of limitation is to be determined by some public act of the political department".
Some of the Federal War Measures include a definition of the term "end of the War" and similar terms. For example, the Trading with the Ene:my Act defines the phrase "end of the War" as meaning ''the date of proclamation of exchange of ratification of the treaties of peace, unless the President shall, by proclamation declare a particular date, in which case the date so proclaimed shall be dee:med to be the 'end of the War' within the meaning of this Act".
50 U.S.C.A., Appen. Sec. 2. It cannot be said that the phrase "termination of the present War" is

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synonymous with "cessation of hostilities". The war time Prohibition Act of World War I was approved 10 days after the armistice with Germany which was signed on November 21, 1918. The Act was held to be within the powP.r of Congress "notwithstanding the cessation of hostilities under thE:: armistice".
See Hamilton Collector, et al v. Kentucky Distilleries and Warehouse Company, 251 U. S. 146 and 147.
Based upon the foregoing decisions, I am convinced that thE:: present war has not legally terminated as contemplated by Section 21 of the Soldier Vote Law.
Should it be assumed that the War has legally terminated, the terms and provisions of the Soldier Vote Law would still be effective unless there has been a convening of the General Assembly in regular session next after said termination of the present War.
It is my opinion that the 1946 adjourned session of the General Assembly did not constitutE:: "convening of the General Assembly in regular session." Jt was adjourned to complete the business of the regular session that convened in January 1945 which was prior to the cessation of armed hostilities. See in this connection the case of Mechanics Bank v. Withers, 6 Wheat-109 as follows:
"Adjourned session is considered as the same session with that at which adjournment was made."
At Section 2 of the Soldier Vote law, it is provided: "This Act shall be liberally construed to carry out the purpose of the General AssE::mbly in its enactment." In determining what the controlling purpose of the General Assembly was in enacting this legislation, I am convinced that the Legislature considered that our being at War created an actual emergency with respect to voting in Ueorgia and that this legislation was necessary in order to enable persons in the military service to vote. The deciding factor .in keeping in effect legislation arising from the necE::ssity of War is not whether actual armed hostilities have ceased, but is whether the necessity which gave rise to the legislation continues to exist. It is true that the conditions which gave risE:: to this legislation exist to a lesser degree than they did on January 7, 1944 when the Soldier Vote law became operative, but we cannot overlook the fact that the Selective Strvice Act is still in effect and thousands of our citizens are still being inducted into the military service. The Soldiers and Sailors' Civil Relief Act is still in effect as to those members who are now in the military service of the United States. Thousands of our citizens are still in uniform. While the pot of intemational diplomacy seethes and boils ever hotter, our sailors are still upon the Seven Seas, and our soldiers and marines arE:: still in the remote parts of the world standing guard over our ramparts. Giving due regard to the necessity which gave rise to this Act and giving due regard to the conditions which still exist, it would be pedantic hair splitting to hold that the Soldier Vote Law has expired and becomE:: extinguished simply because armed hostilities have ceased.
The tokens of intent set down by the Legislature in the Soldier Vote Law have a force of combination that is denied to any one of them alone. That impels me to rule that within the meaning of this Act, it was the intent of the Legislature to preserve the sacred right of franchise to those GE::orgia citizens who are performing their duty as members of the military forces of the United States not only until actual armed hostilities have ended, but until the war has

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been legally and officially terminated and until the convening of the Legislature in regular session next aftE:r said termination.
Therefore, it is my official opinion that the terms and conditions of the Soldier Vote Law as enacted at the 1944 Extraordinary Session of the General Assembly is still in effect and that the setting of the date of the State Democratic Primary shall be controlled thereby.
ELECTIONS-Solicitor General A person electE:d to fill a vacancy in the office of Soli~itor General holds only for the unexpired term.
December 9, 1946 Hon. Ellis Arnall Governor of Georgia
I have your letter of December 5th, in which you state that you plan to issue your official commission to Andrew Joseph Ryan, Jr. (Joe Ryan) for Solicitor General of the Eastern Circuit to fill the unexpired term of Samuel A. Cann.
You request me to advise if the issuance of a commission to Andrew Joseph Ryan, Jr. for the unexpired term of Samuel A. Cann would be proper.
Your lE:tter does not present sufficient facts on which I could base a comprehensive and detailed ruling. I am sure that you can appreciate the difficult situation I am placed in should I try to determine issues between contending parties for a political position without first having before me a complete and full disclosure of all facts relating to the controversy.
I can however, give you a specific answer to your inquiry as to whether the solicitor general was elected for a full term at thE: November 5, 1946 election, or whether this election was only for the unexpired term of Samuel A. Cann which had approximately two years :onger to run.
Article 6, Section 11, Paragraph 1 of the Constitution of Georgia provides in part as follows:
".... every vacancy occasioned by death, resignation or other cause shall be filled by appointment of the Governor, until the first day of January after the general election held next after the expiration of 30 days from the time such vacancy occurs, at which election a successor for thE: unexpired term shall be elected."
The above provision of the Constitution in my opinion, very clearly provides that the election held on November 5, 1946, for the office of solicitor general of the Eastern Circuit was only for the unexpired term of the Hon. Samuel A. Cann. Whoever was elected in this election will only hold office for the unexpired tE:rm and not for a full four year period.
Several members of my staff advise me that there is no legal precedent of this State on your broader question as to which of the parties in question the commission should be issued. It seems that under these circumstances it would be proper for you as Governor to make an examination of the certification furnished by the Secretary of State in regard to this matter. I can see no objection to your issuing a commission as suggested in your h;tter to me, provided you are satisfied after your examination of the certification of the Secretary of State that Mr. Ryan is entitled to the commission.

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It is my duty however, to poi;." out that your commiSSion is only prima facie evidence of title to the office. Consequently, regardless of which of the two claimants receive the commission, title to the office would be subject to adjudication undE:r proper quo warranto proceedings.*
ELECTIONS-Where, When and How Held (Unoffi~ial) The Ordinary may certify an absentee ballot where the postmaster or his assistants refuse to act. July 9, 1946
Hon. C. B. Thornton, Ordinary Elbert County Elberton, Georgia
Your letter of the 8th, requesting that I advise whether or not an Ordinary could witness or certify to absentee ballots, received.
Section 34-3303 of the Code provides in substance that the person receiving a ballot to vote by mail shall open the s=aled envelope containing the ballot in the presence of the postmaster or his assistants, and after marking same shall place the same in another envelope in the presence of the postmaster or his assistants who shall witness or subscribe to the same. This Section also provides that in case of the r=fusal of the postmaster or his assistants to act, the same may be witnessed by any person qualified under the law to attest deeds.
Under Section 29-406 of the Code a deed may be attested by a judge of a court of record, a justice of the peace, notary public, a clerk or deputy clerk of the superior court, or a judge of a city court created by special act. In th= case of Gress Lumber Company v. Coody, 99 Ga. 775 (3) the Supreme Court of the State held that an Ordinary was a judge of a court of record and could officially attest a deed in any county of the State.
I am, therefore, of the opinion that you have full authority to witness or certify to an absentee ballot where the same has been opened before you, voted by the voter, and placE:d in an envelope and sealed in your presence in the same manner that a postmaster or his assistants could do.
ELECTIONS-Where, When and How Held The voters of any district for which the ordinary has been unable to obtain election managers may vote at the voting precinct at the courthouse.
August 29, 1946 Hon. Ben Fortson Secretary of State
You asked the question as to whether an election would be void in the case of a general election where it is impossible for th= Ordinary to get managers to hold the election in all the precincts of the county with the exception of the one at the county seat.
I call your attention to the requirements of the Act of February 1, 1946 relative to the duties of the Secretary of State in furnishing the supplies for =lections to the Ordinaries of the several counties.
*See Alexander v. Ryan, 43 S. E. 2d 654, decided July 10, 1947.

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" ... He (the Secretary of State) shall furnish tile respective OrdinariEs all of such forms as may be necessary, and they shall furnish all such forms as may be necessary to the Justices of the Peace at least fivE days before election day, and on failure to do so the Ordinary shall be subject to a fine not exceeding $100.00."
It would appear from the foregoing that regardless of whether the Ordinary is able to obtain the managers to hold the election it would be his duty to comply with the above requirements. Of course, you are familiar with the provisions of Code Section 34-1201 whEre if the Justices of the Peace will not hold the election any three free holders may do so.
I also call your attention to Code Section 34-801 and Code Section 34-802, as follows:
"34-801. Who may vote. Place of voting.-All persons whose names appear on the list of registered voters placed in possession of the election managers, and no others, shall be allowed to deposit their ballots according to law, at the voting precinct of the militia district or city ward in which they are registe:red, but not elsewhere, except as hereinafter provided. If in any city ward or militia district a voting precinct is not established and opened, the county registrars shall furnish to the election managers at the voting precinct at the courthouse, at the county site, the lists of registered voters of such ward or militia district, and persons whose names appear on such lists shall be allowed to vote at the voting precinct at the courthouse, at the county site, under the same rules that would have governEd if a voting precinct had been established and opened in said ward or militia district.
"34-802. Oath to be taken by persons whose names are not on list.-If any person shall offer to vote at the precinct at the courthouse, at the county site, whose name does not appear on the lists for that ward or militia district, but does appear on the lists for one of the militia districts in which the voting precinct is situated outsidE: of an incorporated town, such person shall be allowed to vote at the courthouse, at the county site, upon taking the following oath, to be administered by one of the managers: 'I swear, or affirm, that I have not voted elsewhere in this election.'
We think the foregoing Code Sections are a complete answEr to your question in that the voters of an entire district may vote at the county seat, or any individual voter may do so ~nder the conditions set out therein.
ELECTIONS-Where, When and How Held (Unofficial) A voter may write in the name of a pe:rson not appearing as a candidate on the ballot.
November 28, 1947 Hon. J. Forrest Johnson Ordinary, Troup County LaGrange, Georgia
I am pleased to acknowledge your letter of November 20th, in which you ask whether or not persons voting in a city general election would be authorized to scratch the name of a nominee, and write in some other name on the same ballot.

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At various times this office has made a rather exhaustive and detailed study of this subject, and while the appellate courts of this State have not passed upon this question, it seems that the overwhelming weight of authority is that whE:re there is no express statute prohibiting a person from voting for a candidate whose name does not appear upon the official ballot, a voter may properly write in the name of a candidate whose name does not appear upon the official ballot and cast his vote for such a person. In 18 Am. Jur., Elections, Section 191, it is indicated very strongly that even where a statute prohibits the writing in of the names of candidates upon the ballot, such a statute itself is unconstitutional.
ELEEMOSYNARY INSTITUTIONS-Milledgeville State Hospital The State may contract with a county for the installation by the county of a pump and tank on the property of the Milledgeville State Hospital where the facilities are to be used by both.
March 5, 1946 Hon. Ellis Arnall Governor of Georgia
Your letter of February 26th, enclosing a copy of a proposed contract and resolution for the installation of a pump and tank on State owned property at the Milledgeville State Hospital by the County of Baldwin, received. You request my official opinion as to the validity and legality of the resolution and contract.
Milledgeville State Hospital is a public State institution and the administration of its affairs is lodged in the Director of Public Welfare and the State Board of Social Security. Under Paragraph 1, Section 2, Article 7 of the Constitution of 1945 the General Assembly is authorized to exercise the power of taxation for the support of the State Government and the public institutions and for health purposes, as well as other purposes.
Under Paragraph 5, Section 7, Article 7 of the Constitution of 1945, counties are authorized to issue revenue anticipation obligations for the purpose of constructing in whole or in part revenue producing facilities authorized by the Act of the General Assembly approved March 31, 1937 known as "The Revenue Certificate Laws of 1937," as amended by the Act' approved March 14, 1939. The Act of 1937 is codified in the Cumulative Pocket Part to the Annotated Code as Chapter 87-8.
In Section 87-802 of the Cumulative Pocket Part of the Code the term "municipality" is defined to mean any county, city or town of the State. The Act authorizes counties to issue revenue anticipation certificates for the establishment of systems, plants, works, instrumentalities, and properties used or useful in connection with the obtaining of a water supply and the conservation, treatment and disposal of water for public and private uses; and used or useful in connection with the collection, treatment and disposal of sewerage, waste and storm waters, including water rights, contract rights, reservoirs and sewerage disposal plants.
I am of the opinion that the State, through its officers, are empowered and authorized to deal with the Milledgeville State Hospital in all reasonable ways necessary for its maintenance and operation in a manner to protect its em-

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ployees and the inmates of the institution. This would include a necessary water and sewerage system. It is clear that counties may install such systems for the benefit of their citizens under the Revenue Certificate Act and under the Constitution of 1945 a county could install and operate a system of water works, sewerage, sanitation and fire protection by a direct levy of tax where the General Assembly has districted the territory of a county for such purpose, th> tax to be levied only upon the district to be served. See Paragraph 2, Section 4, Article 7 of the Constitution.
Subparagraph (a) of Paragraph 1, Section 6, Article 7 of the Constitution of 1945 provides as follows:
"The State, state institutions, any city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and tran~actions as such subdivisions are by law authorized to undertake."
This S>ction of the Constitution clearly authorizes the State, the State institutions, counties and other political subdivisions of the State to enter into a contract with each other for the use of any facilities or services which the State or political subdivisions are authorized by law to undertake. I am clearly of the opinion that the proposed contract is valid and legal and that you, as Governor, will be authorized to execute the contract on behalf of the State.
Since the institution is administered by the Director of Public W tlfare and the State Board of Social Security, I am of the further opinion that the proposed resolution should be executed by the Board of Social Security, if they in their judgment think the same proper, and that the contract should be jointly signed by the Board acting through the Director and, of cours>, the contract should be signed by the county authorities.
ELEEMOSYNARY INSTITUTIONS-Milledgeville State Hospital Lunatics whose estates do not exceed $3,000 may be admitted to the Milledgeville State Hospital on a pay status without commitment by a court of ordinary.
February 13, 1947 Hon. A. J. Hartley, Director State Department of Public Welfare
This will acknowledge your letter of January 30, requesting an opmwn conc>rning the admission of lunatics to the State Hospital at Milledgeville on a paid status and without a commitment by a Court of Ordinary.
It is necessary in determining this question to consider Sections 35-202 and 35-204 Of the Code which provide as follows:
"Lunatics, epileptics, idiots, and demented inebriates may become inmates of the hospital and shall be admitted to, and discharged from, the Hospital under such rules and r>gulations as the Board of Control shall prescribe."
"The Hospital shall be free to all resident citizens, who may be lunatics,

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idiots, epileptics or demented inebriates, and who are paupers . . ; and all resident citizens of the above description whose estate shall not exceed the sum of $3,000 or be sufficient to provide for them may be admitted upon the payment of such reasonable sum for Board and Keep as may be prescribed by the Board of Control of ElE:emosynary Institutions: Provided, however, that no paralytics, epileptics, imbeciles, idiots, drug or alcoholic addicts, or persons suffering from tubercular, venereal or other contagious diseases, whether paupers or not, who are harmless and inoffensive in spirit, and who, if unconfined, would reasonably involve no danger to the life or limb of those with whom they would be associated, shall be committed or admitted to said Hospital .. "
It is noted that Section 35-202 provides that lunatics, and others, shall be admitted to and discharged from thE: hospital under such rules and regulations as prescribed by the Board of Control (now State Department of Public Welfare). Section 35-204, in considering who may be admitted as a paid patient, has omitted the classification of lunatics in that part of the Section dealing with those persons who are harmless .and inoffensive in spirit. This Section also uses the terminology that all resident citizens of the above description, (lunatics, idiots, epileptics and demented inebriates) whose estate shall not exceed the sum of $3,000, may be admitted upon payment of such reasonable sum for board and keep as may be prescribed by the State Department of Public Welfare.
The inclusion of the word "lunatics" in Section 35-204 in classifying the persons who may be admitted as paid patients and the omission of the word "lunatics" in the same Section indicates that lunatics were not considered by the General Assembly as a classification of mental persons who could be considered as inoffensive or harmless; hence such persons could be admitted to the Hospital as paid patients by the State Department of Public Welfare, provided their estate was lE:ss than $3,000.
The method of commitment by a Court of Ordinary is not considered applicable to this question since it is incumbent upon the State Department of Public Welfare to accept lunatics who are committed by such court.
I am, therefore, of the opinion that lunatics may be admitted to the Hospital under the rE:quirements set up in Section 35-204 of the Code of Ge.'orgia.
EVIDENCE-Photostatic Copies (Unofficial) Photostatic copies made from microfilms are admissible as primary evidence.
August 5, 1947 Mr. Frederick J. Burrell National Savings and Trust Company Washington 5, D. C.
This will acknowledge your letter of July 28th, in which you inquired if microfilming or reproductions therefrom were admissible or inadmissible as evidence in the Courts of Georgia; also, if such evidence was admissible, was it considered primary or secondary evidence; you further asked for excerpts from our statutes covering the matter of microfilming.
Section 40-810, 1945 Cumulative Pocket Part, 1933 Ga. Code, provides in part as follows:

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" ... provided he first causes microfilms of the same to be made, capable of development into photostatic copies, and such photostatic copies shall be received in any court of this State as primary evidence of the recitals contained thbrein: . . . "
It, therefore, appears from the above cited code section that photostatic copies developed from microfilms are admissible in any Court of this State as primary evidence. This is provided for by statute.
Also, for your information the definition of primary and secondary evidence is given in Section 38-204 of the 1933 Ga. Code as follows:
"Primary evidence is such as in itself does not indicate the exist~;nce of other and better proof. Secondary evidence is such as from necessity in some cases is substituted for stronger and better proof."
In Hannifin v. Wolpert et. al. 56 Ga. App. 466 the Court of Appeals of Georgia held:
"All papers executed by the same stroke upon a typewriter,-those written by carbon impressions, as well as the sheet which rE:ceives the stroke of the letter from the typewriter,-are alike originals .. any of the manifold copies may be introduced as the original writing in the case."

EXECUTIVE DEPARTMENT-A. and I. D. Board The Agricultural and Industrial Development Board may employ the Atlanta Historical Society to obtain information in connection with advertising and promoting historical resources.

Hon. Ellis Arnall Governor of Georgia

April 6, 1946

I am plE:ased to acknowledge your recent letter inclosing a letter from Hon. Henry A. Alexander, President of the Atlanta Historical Society, and asking my opinion as to whether it would be legal to grant the request of Mr. Alexander that the State of Georgia provide the Atlanta Historical Society with a fund of $5,000 for use by the Society in making certain historical research.
The plan proposed by the Atlanta Historical Society is fully set out in a letter from Mr. Alexander to the Business Panel of the Agricultural and Industrial Development Board of G~;orgia, dated February 14, 1946, as follows:
"Pursuant to preliminary conversations with Mr. W. N. Banks and with Mr. Lee S. Trimble, the Atlanta Historical Society begs to submit its request that the Panel match the appropriations of the City of Atlanta and the County of Fulton, aggregating $5,000. In other words, we ask of the State the sum of $5,000.
"The Society offers in return for this help to furnish the Panel with the manuscript copy for 400 markers to indicate the location of the outstanding points of interest of the Atlanta Campaign of 1864, covering the entire operations from May, 1864, at Dalton and extending to September, 1864 at Jonesboro.
"This material will be prepared by Mr. Wilbur G. Kurtz of Atlanta, whose position as the outstanding authority on this subject is established and whose

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qualifications include at least twenty years exhaustive study of all sources of information, of the terrain and of official reports and all biographies and memoirs available.
"The services of the Atlanta Historical Society would include not only the furnishing of the manuscript material for the tablets but also the designation and actual locating on the ground of the spots where the tablets should be erected and all further assistance and cooperation necessary.
"Mr. Kurtz' name has been widely publicized throughout the country as the expert advisor of the Selznick Studios on the locale of 'Gone With the Wind.' The Society feels that the StatE: and City would be fortunate in securing his services.
"There is no doubt that he could do a job along this line that would arouse tremendous public interest and make the area referred to one of the greatest tourist attractions in the United States.
"In addition to this, we offer the full resources of the Atlanta Historical Society to back up its offer and see that the work is brought to a prompt and satisfactory conclusion. The Society is keenly aware of the extreme and immediatE: importance of promoting tourist interest in this State and is ready and anxious to put its full strength into the movement.
"Indeed it is our thought that as soon as the manuscript material is furnished, which itself can begin at once, the State should proceed immediately to erect these tablets."
Among the purposes which Article 7, Section 2, Paragraph 1 of the New Constitution provides that the General Assembly may exercise the power of taxation is the following:
"8. To advE:rtise and promote the agricultural, industrial, historic, recreational and natural resources of the State of Georgia."
Section 8 of the law creating the Agricultural and Industrial Development Board of Georgia declares that it is the duty of that Board "To advertise and promote the agricultural, industrial, historic, recreational and natural resources, facilities anq assets of the State to make research and surveys, prepare plans, maps and publish information with respect to agricultural, industrial and economic resources, facilities and establishments in the State.'' (Ga. L. 1943, p. 113).
From the above it appears that the State has the right to levy taxes to advertise and promote the historic resourcE:s of the State and that it is the duty of the Agricultural and Industrial Board to advertise and promote such historic resources and assets. The question then presented is whether this power and duty can be legally exercised in the manner proposed by the Atlanta Historical Society.
Article 7, Section 1, Paragraph 2 of the New Constitution contains the following provision:
"The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association."
If the State were to grant the Atlanta Historical Society a sum of money to bettu enable the society to carry out its own purposes, it is my opinion that this would amount to a donation or gratuity within the meaning of this section. Atlanta Chamber of Commerce v. McRae, 174 Ga. 590.

An entirely different picture is presented if the State, through the proper agency or department thereof, desires to employ the Society to perform a stated service for the State. If for the purpose of advertising and promoting its historic resources, the StatE; desires to obtain certain information relative to the Atlanta campaign of 1864, it may employ the necessary agents to obtain this information. Spalding County v. W. Chamberlin & Co., 130 Ga. 649 (3a); Wright v. Floyd County, 1 Ga. App. 582.
The choice of the agency and the value of its services are matters resting in the discretion of the State board or head of the State department contracting to obtain the desired information.
In the above opinion it has been assumed that funds are or can be made available for the; stated purpose in accordance with the appropriation and budgetary laws of this State.

EXECUTIVE DEPARTMENT-Archives and History Material gathered by the Department of Archives and History may be made available for private publication.

Hon. Ben W. Fortson, Jr. Secretary of State

September 23, 1946

I am pleased to acknowledge your letter of Sept6mber 17th, in which you state the following:
"Mr. Walton Folk of th6 Continental Book Company wishes to publish a book made up of material compiled by the Department of Archives and History. This book will be the letters of Benjamin Hawkins. He wants to publish these using this material and present the Department of Archives and History 25 copies. There will be no cost to the state. I would like to know if I have authority to let Mr. Folk publish a book containing material gathered by the Department of Archives and History without cost to the state."
There is no specific statute which prohibits you from complying with thb above request, provided you determine as a matter of administration that such is proper.
Section 40-802 of the Code in setting forth the objects and purposes of the Department of Archives and History, provides in part as follows:
"The objects and purposes of the Department shall b6 . . . to diffuse knowledge in regard to the State history, ... to stimulate historical research, especially in the prosecution of local histori6s; ..."
Section 40-804 of the Code provides in part: "The Secretary of State is hereby empowered to adopt rules for the government of the Department; ..." Since there is no specific statutE; prohibiting the grant of the request contained in your letter as set forth above, your inquiry presents a question to be determined by a sound exercise of administrative discretion. If you determine that the information in question can be assembled without interfering with the orderly performance of th6 duties of this office, and further that such assembled and correlated information will be beneficial to the State, I can see no reason why you should not comply with this request. On the other

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hand, should you determine either of the above propositions to be adverse to the State, then of course such request should not be granttd.
Of course you understand that you are without authority to enter into any contract with any one in connection with the publication of the proposed book, and that the State is not to be bound or obligated in any way in the matter. The acceptance of twenty-five copies, should you decide favorably on this matter, would simply be a gift to tht State.
EXECUTIVE DEPARTMENT-Attorney General The Attorney General should not render an opinion on the constitutionality of a legislative enactment, particularly where the interest of the State is not directly involved.
December 16, 1947 Hon. M. E. Thompson Acting Governor
I am pleased to acknowledge your letter of December 13, in which you request an official opinion as to the constitutionality of the county and municipal home rule statutes as enacted at the 1947 session of the General Assembly.
Under Section 40-1602 of the Code, it is made the duty of the Attorney General, when r6quired by the Governor, to "give his official opinion in writing or otherwise on any question of law connected with the interests of the State or with the duties of any of the departments." In keeping with the abo;e statute, my predecessors in office have established the custom of refraining from giving their official opinions on matters which do not involve the interests of the State, or any of its various departments.
It is apparent that the county and municipal home rule statutes, as tnacted by the 1947 General Assembly, do not directly involve the State Government or any of its various departments. Therefore, applying the above cited code section and the established policy of my predecessors to the nature of the subject statutes, I would feel constrained to decline to rule on the constitutionality of these statutes.
In addition to the rule of custom connected with the rendering of official opinions on constitutional questions where the interE:st of the State Government is not directly involved, I also call your attention to the legal obstacle which prevents me from rendering a binding opinion on these questions. Under the Constitution of our State, only the judiciary can declare a solemn Act of the Legislature void and unconstitutional. See Articlt 1, Section 4, Paragraph 1. (Section 2-402 of the Pocket Part Supplement to the Code).
Almost a hundred years ago the Supreme Court of Georgia in the case of Beall v. Beall, 8 Ga. 210, enunciated this rulE: of law as follows:
" ... it is both the right and duty of all courts to declare all acts void, which plainly and palpably violate the Constitution."
Clearly, all questions affecting the validity of legislative enactments should be dE:termined by the courts, rather than by a ruling of the Attorney General which could not in any way finally determine such an issue. Should we decide to rule upon such an issue we are immediately confronted with the elementary principle of law that all statutes are presumed to be constitutional

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until they are declared otherwise by the courts. See Churchill, et al. v. Walker, et al., 68 Ga. 681. Nothing that we might say in an official opinion could in any way restrict this presumption of law in favor of the constitutionality of a statute. This clearly demonstrates the inappropriateness of a ruling from the Attorney General on such constitutional questions, particularly where the interest of the State is not directly involved.
Passing upon the constitutionality of solemn Acts of the Legislature is indeed so grave a matter that the Constitution of our State places final appellate determination of such matters exclusively in the Supreme Court itself, the Court of Appeals being deprived of such jurisdiction.
In view of the provisions of law referred to herein, together with the custom and policy established by my predecessors in office, I feel sure that you understand my position in declining to rule on the constitutionality of these particular statutes.
EXECUTIVE DEPARTMENT-Comptroller General The Comptroller General is no longer required to make a quarterly report to the Governor on the financial condition of the State but is required to make the annual report required by Code Sec. 40-1510 and such other reports as the Governor requires.
October 17, 1945 Ron. Ellis Arnall Governor of Georgia
I am pleased to acknowledge your letter of October 11th, together with a report submitted by the Comptroller General on the financial condition of the State Treasury. You request my opinion as to whether or not Section 26301 of the old Constitution which required a quarterly report of the Comptroller General is still the law of this State under the Constitution of 1945.
Section 2-6301 of the old Constitution is omitted from the Constitution of 1945. There is no statute requiring the Comptroller General to submit a quarterly report on the financial condition of the State Treasury to the Governor. There is a statute however, requiring the State Treasurer to submit such a quarterly report. (See Section 40-1101 of the Amended Code).
While the Constitution of 1945 and the laws of this State do not require the Comptroller General to submit a quarterly report to the Governor, Article 5, Section 1, Paragraph 17 provides in part as follows:
"The Governor may require information in writing from Constitutional officers, department heads, and all State employees, on any subject relating to the duties of their respective offices or employment."
In view of the above constitutional provision, you would be authorized as Governor to require information from the Comptroller General or any other officer or employee of the State government on any subject relating to their duties at any time you so desire.
I am of the opinion that the Comptroller General is not required to make a quarterly report to you, but is required to make an annual report as set forth in Section 40-1510 of the Code of Georgia.

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EXECUTIVE DEPARTMENT-Department of Law (1) The Governor, with the concurrence of the Attorney General, may appoint a Deputy Assistant Attorney General for the performance of specific services and designate the department which shall pay for such services. (2) Where: a Deputy Assistant Attorney General performs services in the protection of the corpus of a trust, the Board of Regents of the University System of Georgia, as trustee, may pay for such services from the assets of the trust, if a proper court order is secured.
November 26, 1947 Hon. L. R. Seibert, Exe:cutive Secretary Regents of the University System of Georgia
I am pleased to acknowledge your letter of October 30th, together with an attached excerpt from the minutes of the meeting of the Board of Regents, in which an official ruling is asked on the following resolution:
"RESOLVED, That the Board of Regents of the University System of Georgia shall and it does hereby request the Attorney General of the State of Georgia to furnish the Board of Regents with an official opinion as to whether the board, as trustee for Radio Station WGST, in the protection of the corpus of the trust itself, is authorized to incur expenses, including attorneys' fees, for this purpose and whether it is authorized to pay these expenses including attorneys' fees directly from the assets of the trust."
Since the law relating to the payment of fees for legal services and the employment of counsel by the State is set forth in particular statutes pertaining only to the State and the operation of the State: government, it will be necessary for this opinion to be limited to the question of the authority of the Board of Regents to employ counsel and to pay for such legal services from the income of the trust. Expenses other than attorneys' fees will therefore not be directly ruled upon herein.
Section 40-1614 of the Ame:nded Code provides as follows: "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. However, the Governor, with the concurrence of the Attorney General, in specific instances and on special causes may appoint therein and thereto for such temporary and specific services deputy assistant Attorneys General, to be compensated therefor as the Governor may direct." Even though the Board of Regents of the University System of Georgia is a corporation, the same is nevertheless a department of the state government of Georgia. See, Code Section 32-101. Since the Board of Regents constitutes a department of the State Government, it is necessarily subject to the provisions of Section 40-1614 above quoted, and is prohibited from the employment of legal counsel. The Governor however, with the concurrence of the Attorney General, is authorized to appoint special counsel for temporary and specific services to be known as Deputy Assistant Attorneys General. Such Deputy Assistant Attorneys General shall be compensated for their strvices as the Governor may direct.

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There is nothing in the General Appropriations Act of 1943 which prevents the Govcrnor from directing the Board of Regents to pay such legal fees for duly appointed Deputy Assistant Attorneys General from funds made available to that Department of State. Likewise, the appropriation made to the Department of Law does not specifically require that fees of this nature must be paid from the appropriation made to the Law Department. Section 36 of the Appropriations Act of 1943, (Ga. L. 1943, p. 91) the same being the Appropriations Act under which the Stat: of Georgia is currently operating, provides as follows:
"Law, Department of-for the cost of operating 'the Department of Law ... $100,000.00.
"Provided, that the salaries of all Assistant Attorneys General, all Law Clerks and stenographic help therefor shall be paid from this fund. No State official is authorized to expend the funds appropriated for the support and maintenance of the rf:spective agency for the purpose for which provision is made in this item unless the payment is made 100% from Federal funds."
The above provision of the Appropriations Act only applies to the salaries of Assistant Attorneys General, Law Clerks and stenographic help, and does not require the salaries of Deputy Assistant Attorneys General properly appointed by the Governor and concurred in by the Attorney General to be paid from the Law Department fund. Referring back to Section 40-16{4, supra, we find that such Deputy Assistants may be "compensated therefor as the Governor may direct." Certainly, the quoted provisions of the abovf: statute gives the Governor the right to designate the department which shall pay for such legal services.
In view of the above provisions of law, I am of the opinion that when attorneys' fees have been incurred by virtue of the employment of an attorney properly appointed by the Governor and concurrf>d in by the Attorney General, the Governor is authorized, should he see fit to do so, to direct that such attorneys' fees be paid from funds made available to the department for which such legal services were rendered. The Governor would likewise have the authority to fix the amount of the fee to bf: paid. The Board of Regents in its discretion and with proper authorization of the court, could charge such fees which were ordered to be paid out of its department funds to the trust itself, since such services were rendered exclusively in behalf of the trust. This is true, where the Board of Regents, acting as trustees for Radio Station WGST, is convinced that the legal fees incurred were for the purpose of protecting the corpus of the trust estate. These fees could be paid by the Board of Regents from the assets of the trust upon a proper direction on the part of the trustees. It is also suggestf>d that due to the personal and fiduciary relationship existing between the trustees and the trust estate, that such an f>Xpenditure be approved by the superi.or court having jurisdiction over the trust proceedings. A proper court order would remove all doubt as to the validity of such a payment.
Section 108-426 of the Code provides:
"Trustees are authorized, out of the income of the estate, to pay all debts incurred for its protf>ction and preservation, and to appropriate a sufficiency of the balance for the support and maintenance of the beneficiaries of the

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trust. They may not encroach upon the corpus of the estate, except by order of the superior court."
Attorneys' fees incurred at the instance of the trustees for the protection and preservation of the trust estate are valid debts and may be paid by the trustees out of the income of the estate. The only exception to this rule would be that in the present instance where the State is involved, the attorneys would have to be appointed in accordance with the statutory laws above set forth. This having been done, the Governor could direct such fees to be paid by the Board of Regents out of funds made available to that department of State government. The Governor could not however, direct that such fees be paid <>ut of the assets of the trust estate since the trustees alone are in charge of this matter. This is true for the reason that the trustees are in control of the funds of the estate and not the Governor, and the latter would have no authority to direct thE: trustees in the exercise of their fiduciary relationship with the trust estate. However, the Governor in his discretion could direct that such legal fees be payable by the Board of Regents from funds appropriated to that department, and the Board could likewise in its discretion direct that such expenditure be charged against the trust estate provided a propH court order to this effect was secured.
EXECUTIVE DEPARTMENT--Governor (1) A bill or resolution of the General Assembly presented to the Governor 5 days (Sunday excepted) prior to adjournment must be returned within 5 days (Sunday excepted) or it becomes law. (2) The Governor has 5 days (Sunday excepted) after adjournment of the General Assembly to approve a bill or resolution presented to him less than 5 days (Sunday excepted) before adjournment; otherwise, it fails to become law.
January 24, 1946 Hon. Ellis Arnall Governor of Georgia
Yours of January 24th, requesting my official opm10n as to your veto power in reference to Acts and Resolutions of the General Assembly, received.
You ask specifically: "How many days do I have to veto a bill after it is received in the Executive Department? AftE:r the Legislature has adjourned, how many days do I have to act on bills or resolutions? After the Legislature has adjourned, if I fail to approve a bill or a resolution, does it automatically become law, or is it inoperative?" Article 5, Section 1, Paragraph 15 of the Constitution of 1945, provides as follows: "The Governor shall have the revision of all bills passed by the General 1\.ssembly before the same shall become laws, but two-thirds of E:ach house may pass a law notwithstanding his dissent; and if any bill should not be returned by the Governor within five days (Sunday excepted) after it has been presented to him, the same shall be a law; unless the General Assembly, by their adjournment, shall prE:vent its return. He may approve any appropriation, and disapprove any other appropriation, in the same bill, and the latter

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shall not be effectual, unles's passed by two-thirds of each House." The provision of the Constitution of 1945 as set forth in this Paragraph
is the same as the Constitution of 1877. Paragraph 16 of Section 1, Article 5 of the Constitution of 1945 is the same with the exception that the following proviso was added thereto:
"Provid~d, however, that nothing contained in this Article shall be constrmid to confer on the Governor the right to veto or enter his disapproval of any proposal made by the General Assembly to amend this Constitution."
The Supreme Court of Georgia in the case of Solomon v. The Commissioners of Cartersville, 41 Ga. 157, said:
"If this was an original question, independent of any construction heretofore given by the Executive Department of the State Governm~nt, to this clause of the Constitution, we should be inclined to hold, that the Governor could not approve and sign any bill after the adjournment of the General Assembly; but on looking into the past history of our legislation, we find that it has been the practic~ for many years, for the Governor to take five days after the adjournment of the General Assembly, for the revision of bills passed by that body, and to approve and sign the same within that time, but not afterwards, and that a large number of the most important Acts now upon the statute books of the State have been so approved and signed, which usage and practice of the Executive Department of the State Government should not now, in our judgment, be disturbed or set aside."
In the Solomon case, supra, the Act in question passed both houses of the General Assembly on March 16, 1869. The General Assembly adjourned sine die on March 18, 1869. Governor Bullock approved the Act under consideration on May 26, 1869. The court held that inasmuch as the bill was not approved and signed by the Governor until more than two months had elapsed from the day of the adjournm~nt of the General Assembly, the same never became a law of the State.
The same Court in Danielly v. Cabaniss, 52 Ga. 211, held as follows: "There seems to be no law, or rule of either house of the General Assembly providing any mode in which it is authoritatively to be ascertained when a bill is pr~sented to the Governor for his signature. And the practice on the subject is not uniform. The fact ought in some way to appear of record, and on the act itself. Some of the governors seems to have made an entry on the enrolled bill; others have left it to the legislature to preserve the evidence. There ought to be legislation on the subject. The facts in this case, w~ believe are that the Governor made no entry, and none was made by the house. At a subsequent session of the same legislature the matter was inquired into by a committee, and the act in question, after a report of the committee, was declar~d to have been duly enacted and become a law by the failure of the Governor to dissent within the constitutional period, the bill having been passed and presented more than five days before the adjournment. We think this is sufficient authentication of the fact and that the bill was duly passed." In view of the above authorities, and the constitutional provision, it is my opinion that where a bill or resolution is presented to the Governor five days or more (Sunday excepted) prior to the adjournment of the General Assembly, it must be returned by the Governor within five days (Sunday excepted) after it has been presented to him, otherwise the bill becomes law.

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If a bill or resolution is presented to the Gove:rnor less than five days before the adjournment of the General Assembly, the Governor may take five days (Sunday excepted) after the adjournment of the General Assembly to approve and sign the bill, but no approval can be made after that time, and if not approved within that time, the same does not become a law of the State.
This is in line with an opinion r~:ondered by you while Attorney General for Governor Rivers on March 18, 1939, Opinions of the Attorney General, 1939-41, p. 237.
I have considered the opinion rendered by my predecessor, Hon. T. Grady Head, to you dated March 7, 1945. The question there involved is different from the one presented in your letter, due to the fact that at that time the G~:oneral Assembly was not adjourning sine die. Mr. Head reached the conclusion that bills or resolutions reaching you on the day of the adjournment to reconvene January 14, 1946, would automatically become law if not disapproved by you within five days. That opinion was based on the theory that the General Assembly had not adjourned sine die and would not be controlling, in my opinion, in the instant case where the General Assembly will adjourn sine die.

EXECUTIVE DEPARTMENT-Governor The veto power do~:os not permit the Governor to change the effective date of an act of the General Assembly from the one fixed in the act.

Hon. Ellis Arnall Governor of Georgia

February 1, 1946

I have your letter dated February 1, 1946, in which you state: "Under that provision of the Constitution giving the Governor the right to revise all bills and resolutions, I affixed a notation on the act of the Legislature rearranging the Senatorial districts making that part of the bill relating to the first fifty-two districts effective January 1, 1952, and that part of the bill relating to the 53rd and 54th Senatorial districts effective immediately." You request me to give you my opinion as to whether or not you have that authority. In my opinion the Governor's veto power under Article 5, Section 1, Paragraph 15 of the Constitution as amended does not give you authority to change the effective date of any act contrary to the date fixed in the act by the General Assembly.

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EXECUTIVE DEPARTMENT-Governor The Governor may reimburse the expenses incurred by the State and county Democratic Executive Committee in connection with the defense of a case inV'Olving the primary election laws whHe the court holds that the primary election is an integral part of the electoral process of the State.*

Hon. Ellis Arnall Governor of Georgia

March 26, 1946

In your letter of March 15th you request me to give you an opmwn authorizing payment of expenses incurred by the State Democratic Executive Committee and the Muscogee County Democratic Executive Committee in connection with the case of Primus E. King v. J. E. Chapman et al, which case involves our primary election laws.

You point out in your letter that it is your opinion these expenses should be paid by the State, particularly "if it is ultimately held that the Democratic Primary is a part of the State election machinery."
This case was brought by Primus E. King in the District Court of the United States for the Middle District of Georgia against J. E. Chapman, Jr. et al. The defendants were members of the Democratic Executive Committee of Muscogee County, Georgia.

The plaintiff sought damages of the defendants for the alleged deprivation of his civil rights guaranteed to him by the Constitution and laws of the United States, namE:ly, the right to vote in Muscogee County in the Democratic primary held on July 4, 1944 for the nomination of United States Senator and members of the House of Representatives as well as State officers. The case was tried on an agreed statement of facts in which it was stipulated that the said King was denied the privilege of voting solely on account of his race.

On this and other stipulated facts, some of which are not pertinent to this opinion, the court rendered conclusions of law and a judgment in favor of the plaintiff in the amount of $100.00.

The District Court held that "the holding of the Democratic primary election in Muscogee County in the State of Georgia on July 4, 1944 for the nomination of a candidate for United States Senator and members of the House of Representatives to be voted on in the general election in said year was by law an integral part of the electoral process of the State of Georgia." (Emphasis supplied).
The court further held that "the holding of said primary was action by the State of Georgia acting through the Democratic party as its instrumentality."

When the District Court ruled that the action of the Muscogee County Democratic Executive Committee in dE:nying the plaintiff the right to vote in the July 4, 1944 primary was action by the State and such primary election was a part of the electoral process of the State of Georgia, I, as Attorney General, entered the case by filing a brief as amicus curiae in support of the defendants' appeal from the decision of that court.

*See King v. Chapman et al., 62 F. Supp. 639; 154 F. 2d 460; 327 U. S. 800.

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The appeal and the State's intervention by a brief as amicus curiae were filed in th(: United States Circuit Court of Appeals, Fifth Circuit.
Counsel for the appellants and i appeared in person for oral argument
in support of the appeal. Subsequent to this appearance on March 6, 1946, this court rendered its
decision in which it sustained the conclusion of the lower court, but on somewhat different grounds.
For the purpose of this opinion, I quote the general conclusion and decision of the court which holds as did the lower court that the primary election is a part of the public electoral machinery, and that the action of the Democratic Executive Committ(:e is action by the State. After referring to specific statutory provisions relating to the holding of primary elections, the court stated:
"We think these provisions show that the State, through the managers it requires, collaborates in the conduct of the primary, and puts its power behind the rules of the party. It adopts the primary as a part of the public election machinery. The exclusions of voters made by the party by the primary rules become exclusions enforced by the State and when these exclusions are prohibited by the Fift(:enth Amendment because based on race or color, the persons making them effective violate under color of State law a right secured by the Constitution and laws of the United States within the meaning of the State which is here sued on."
Again, it is noted that the court definitely holds the action of the Democratic Executive Committee to be action by the State.
Attorneys for Chapman, et al. have filed a motion in the Fifth Circuit Court of Appeals for a stay of mandate in order to afford opportunity for thb' filing of a petition for writ of certiorari to the United States Supreme Court. This writ will be filed within the next ten days. Simultaneous with its filing and upon your direction. I will file a brief as amicus curiae in support of said petition.
You, of course, understand that the State's position in this case is based on the legal theory that the action of the Muscogee County Democratic Executive Committee is not the action of the State of Georgia. Our original brief fi}(:d in the Fifth Circuit Court of Appeals is predicated entirely upon this theory.
We can not in the first instance, nor can we in the future procedure of the case, intervene as parties. The only legal support the Law Department can give in our efforts to protect our primary laws is the filing and personal appearance of the Attorney General in support of such appeal procedures as may be adopted by the appellants. This we have done.
If the United States Supreme Court affirms the lower courts in the conclusion that action by the Democratic Executive Committee is action by the State in the holding of a primary election, and that such primaries are a part of the electoral process of the State of Georgia, you as Governor would be legally authorized to reimburse the State Democratic Executive Commitee and/or the Muscogee County Democratic Executive Committee for all expenses occasioned by reason of this litigation.
Code Section 40-209 provides that:

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"When any suit shall be instituted against the State or against any person, in the result of which the State has an interest, under pretense of any claim inconsistent with its sovereignty, jurisdiction, or rights, the Governor shall, in his discretion, provide for the defense of such suit, unless otherwise specially provided for."
I find no other provisions of law specifically providing for the State assuming responsibility for the expense of litigation of the nature involved in this case.
I am of the very definite opinion that should the Supreme Court affirm the lower courts, you would be authorized, under the above stated Code Section, to make the reimbursement.
EXECUTIVE DEPARTMENT-Governor The Governor may not create price controls by executive order.
July 5, 1946 Hon. Ellis Arnall Governor of Georgia
Your letter of July 3rd received. You ask my official opinion on the question of whether or not you can, by Executive Order, set up in this State OPA and control prices of goods, services and merchandise.
Section 89-903 Code 1933 provides as follows: "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." This limitation of an officer to act was applied to the Governor in the case of Penitentiary Co. v. Gordon, 85 Ga. 159. Under the Constitution of the State the Executive and Legislative powers are separate. Only the Legislature has power to make laws. Only the Legislature can delegate powers to the public officers if the Constitution fails to do so. I have made diligent search of the Constitution and Statutes and do not find any authority which would authorize or empower you to set up State OPA or to control prices of goods, services and merchandise. The Governor has no power to control contracts between private individuals of the State. I am, therefore, of the opinion that you cannot, by Executive Order, set up State OPA and cannot, by such order, control prices of goods, services and merchandise.
EXECUTIVE DEPARTMENT-Governor Funds appropriated to the Executive Department may be used to publish the official addresses, messages, and State papers of the Governor.
September 6, 1946 Hon. Ellis Arnall Governor of Georgia
In your letter of September 3 you request my official opinion as to Whether you have legal authority to use State funds for publishing your official addresses, messages and State papers in a bound volume.

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I find no statutes dealing specifically with the subject matter prE:sented in your inquiry; however, under the Appropriation Act the Legislature appropriated funds for the Executive Department to be used by the Governor for the operation of that Department. It is my opinion that the publication of official matters such as you enumeratE: in bound volume, for public information, could be legally paid for out of the funds appropriated to the Executive Department for the operation of that Department; provided, you, as Governor, determined that such a publication serves the public interest and expedites the operation of the Executive DepartmE:nt as contemplated by the General Assembly.
In support of my position, I call attention to Section 40-208 of the Code, Paragraphs 1 and 9 (Ga. L. 1931, pp. 7, 45). This Code Section provides, in part, that the Governor shall cause to be kept and preserved in the Executive Department:
"1. Journal-A journal or minute book of all of his official acts. "9. Other records-Any other books or files that, in his judgment, his Department needs." (Emphasis supplied). The LE:gislature certainly presumed that in publishing official acts, etc., the Governor would resort to the most practical and permanent method of causing such official acts, etc., to be kept and preserved in the Executive Office.

EXECUTIVE DEPARTMENT-Governor

(1) The Governor may employ a financial advisor on matters pertaini~g

to Federal grants, priorities, allotments, etc., to the State.



(2) The financial advisor employed by the Governor may not be com-

pensated from funds appropriated to the State Highway Department.

(3) The financial advisor employed by the Governor may be compensated

from the contingent funds.

September 12, 1946 Hon. Ellis Arnall Governor of Georgia
I have your letter of September 5, along with copy of an Executive Order appointing Ryburn G. Clay as Agent, etc., dated October 5, 1945, and requesting an opinion as follows:
1. Do you, as Governor, have authority to engage the servicE:s of Mr. Clay as an agent and financial advisor to you on matters pertaining to priorities, funds, allotments, grants, surplus property, etc., from the Federal Government for the State of Georgia?
2. If such an appointment is legal, can you direct that such services be paid for by the State Highway Department?
3. If such sE:rvices cannot be paid for by the State Highway Department, is there authority for the same to be paid by the State from any source?
In answer to Question 1, Code Section 40-305 of the Code of. 1933 provides that:
"The Governor shall have power to engage the services of any competent person for the discharge of any duty required by the laws, and essential to

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the intere:sts of the State, or necessary, in an emergency, to preserve the property or funds of the State."
It is therefore clear from the foregoing statute that you do have the legal authority to appoint Mr. Clay as your agent and financial advisor on the subject matter referred to in your Executive Orde:r. The Executive Order is legal and proper as to form.
With reference to Question 2, as Governor, you have authority to appoint a Director of the State Highway Department, a Treasurer, and a State Highway Commission. However, I am unable to find any law that would give you authority to appoint any other person to a position in the State Highway De:partment or to direct the State Highway Department to compensate a special agent for services rendered in behalf of the State Highway Department and the State.
Code Section 95-1606 of the Pocket Supplement to the Annotated Code of 1933 provides as follows:
"Immediately upon the appointment and qualification of the said State Highway Director he shall become vested with the duties and powers of the management and control of the State Highway Department, except in so far as such duties and powers may conflict with those of the State Highway Commission as hereinafter provided."
This Code Se:ction places the management and control of the State Highway Department under the jurisdiction of the State Highway Director, with the exception of certain powers given the State Highway Commission.
Since the management and control of the State Highway Department is vested in the Director, it is, therefore, my opinion that you could not direct; that Department to compe:nsate Mr. Clay for services rendered under the Executive Order. In other words, he could be paid by the Department only if employed by the Director and placed on the payroll as any other' employee.
The third question propounded is answered in Code Section 40-312 of the Code of 1933, which provides as follows:
"All persons employed by the Governor, for whom no compensation shall be prescribed, shall be paid, according to his discretion, out of the money appropriate:d therefor. If no money shall be thus appropriated, and the employment shall be indispensable, he may pay them out of the contingent funds."
The foregoing Code Section gives you, as Governor, the right to prescribe compensation for the employment of a special agent such as you designate in Mr. Clay, if no compensation has been fixed by law and no appropriation made therefor, and provides that such payment shall be made out of the contingent funds.
By way of summary, it is my opinion that (1) your Executive Order of October 5, 1945, appointing Honorable Ryburn G. Clay as agent and financial advisor to thE:' Governor, is legal and proper; that (2) you are not authorized to direct the State Highway Department to compensate Mr. Clay for his services from funds appropriated to the Department; and (3) that you are authorized to compensate Mr. Clay for his services from the contingent funds as provided for under the Appropriation Act.

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EXECUTIVE DEPARTMENT-Go~ernor The Governor may serve as president of an insurance company.

Hon. Ellis Arnall Governor of Georgia

September 20, 1946

You requested mE: by telephone to advise you whether or not you could

legally serve as president of an insurance company during the remainder of your term of office as Governor of the State. It is my understanding, from our conversation, that you desire to accept the presidency of an insurance company immediately and before the expiration of your term of office, in order to be able to attach your signature as president to policies now being printed for issuancE: in January 1947.
After a diligent search, we are unable to find any constitutional or statutory provisions of law which would prohibit your serving in the capacity of president of an insurance company while you are Governor of Georgia.
The only prohibition we find against a Governor of GE:orgia engaging in any type of legitimate business during his tenure of office is in Paragraph 1, Section 1, Article 5 of the Constitution of 1945, which reads, in part, as

follows: "The salary of the Governor for each year thereafter shall be $12,000.00
per annum, until otherwise provided by a law passed by a majority vote of both branches of the GenE:ral Assembly, which shall not be increased or diminished during the period for which he shall have been elected; nor shall he receive within that time any other emolument from the United States, or either of them, or from any foreign power."

EXECUTIVE DEPARTMENT-Governor; General Assembly (1) Where a candidate rE:ceives a.majority of the votes cast for Governor and dies be:fore taking office, there is no vacancy in office and the incumbent holds over. (2) Where a candidate recE:ives a majority of the votes cast for Governor and dies before the returns are opened and published, the General Assembly may not elect a Governor.*
January 3, 1947 Hon. Ellis Arnall Governor of Georgia
I am in receipt of your letter dated January 3, 1947, as follows: "There have bee:n so many claims and counter-claims in reference to the law governing the succession of a governor, by reason of the death of 'bhe governor-elect before his inauguration, that I am anxious to have your official opinion as to how the office of governor is to be filled in view of the present situation." I am pleased to receive your request for my official opinion on the subject matter, because of its importance to the people of Georgia at this time. Th~:~
So held in Thompson, Lieutenant Governor, et al., v. Talmad&"e, 201 Ga. 867, decided March 19, 1947.

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views expressed in this official opm10n conform in every respect to the views I gave you orally before the release of your statement to the prE:ss, December 24, 1946.
Your inquiry addresses itself to an interpretation of several sections of the State Constitution which are applicable to the legal conditions arising from the death of Honorable Eugene Talmadge, who was nominated for Governor of Georgia at the July 1946 State Democratic Primary, and whose name was the only Democratic nominee for Governor printed upon the official ballot used in the November General Election. It is a matte.r of common knowledge that the Honorable Eugene Talmadge obtained a majority of the votes cast in that election and that since that date, and prior to the date of taking office, he died.
To answer your inquiry in specific terms, the following categories must be considered: (1) the tenure of the incumbent Governor; (2) the requirements of the Constitution as to the Legislature's declaration of the results of the election, and its authority to elect a Governor; (3) the status of the office of President of the Senate; (4) the status of the Lieutenant-Governor of Georgia, as to immediate succession to the office of Acting Governor.
Your duties as the present incumbent of the Governor's office are set forth in th~ following section of the Constitution: Article 5, SE:ction 1, Paragraph I.
"The executive power shall be vested in a Governor who shall hold his office during the term of four years, and until his successor shall be chosen and qualified. The Governor serving at the time of thE: adoption of this Constitution and future Governors shall not be eligible to succeed themselves and shall not be eligible to hold the office until after the expiration of four years from the conclusion of his term of office."
In construing the Constitution it is important that weight be given to every word of the framers thereof. The provision that the Governor shall hold his office "during the term of four years and until his successor shall be chosen and qualified" was a recognition by the framers of that instrument that contingencies might happen which had not been specifically dealt with, the purpose being to avoid a vacancy in office when such contingency occurred.
It was held in the case of Pittman v. Ingram, 184 Ga. 255, that upon the death of the person elected to the office of Judge of the SupE:rior Court prior to the date of taking office, there was no vacancy in office created thereby, and that the incumbent judge would continue in office until his successor was chosen and qualified as provided by the Constitution.
That same provision of the Constitution, which is as follows: "Governors shall not be eligible to succE:ed themselves and shall not be eligible to hold the office until after the expiration of four years from the conclusion of his term of office" does not affect the question here under discussion. It is clear that this provision of the Constitution is intended to make a Governor ineligible to succeed himself in order that he might avoid means afforded him by his office of securing re-election. It does not exclude him from performing and discharging thE: duties of his office after the expiration of four years. He, having- been chosen by the people and having served for four years, is presumed to be better qualified than any other penon to perform the .duties of the office

304
of Governor more efficiently during the emergency than any other person. The Constitution of Georgia neither expressly nor by implication indicates
an intention to render a Governor incompetent to continue his duties as Governor in such an emerge:ncy. On the contrary, the Constitution expressly states that he should continue in office during a term of four years and "until his successor is chosen and qualified."
Your public statement that you planned "to resign promptly at a time when the Lieutenant-Governor has been installed in office and he can succeed under the constitutional provisions, and when there can be no further question as to his right to do so" makes it unnecessary to decide the question with respect to the period during which it would be your duty to hold over.
The duties of the Legislature with respect to the election of a Governor are set forth in the: Constitution in Paragraph 2, Section 1, Article 5 of the Constitution of Georgia, as follows:
"The members of each branch of the General Assembly shall convene in the Representative Han; and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence and under the direction of thE: General Assembly; and the person having a majority of the whole number of votes shall be declared duly elected Governor of this State; but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to e:lect, the General Assembly shall immediately elect a Governor viva voce . " (Emphasis supplied).
By this provision of the Constitution of Georgia it is the duty of the Legislature first to open and publish the returns of the Gene:ral Election for Governor held November 5, 1946. Having published the returns it is likewise clear that the Legislature should declare the person receiving a majority of the whole number of votes cast duly elected Governor. Since it is a matter of common and public knowledge that the: Honorable Eugene Talmadge was the only candidate on the official ballot at said election for the Office of Governor, and received the constitutional majority of votes cast, the duties of the Legislature are exhausted when they shall so publish and declare.
The further provision of this section of the Constitution with reference to the Legislature's electing a Governor is applicable only when no pe:rson shall have received at said election the majority of the whole number of votes cast.
The law of this State does not authorize the disregarding of a majority of the votes cast in an election simply because the person receiving same was at that time or subsequently became incapacitate:d to fill said office. It certainly was not the intention of the framers of the Constitution that in such circumstances the majority of the people should be ignored and a defeated candidate or a person receiving a minority of the votes permitted to hold said office. This view is clearly sustained by the: court decisions in Dobbs v. Mayor, et a!, 128 Ga. 483; Marshall v. Walker, 183 Ga. 44; S~ate of Missouri v. Walsh, 7 Mo. 142.
In addition to the constitutional provisions on these questions which prevent the General Assembly from electing a Governor under these circumstances, it is clearly the legislative intent that the General Assembly should not have

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such authority. This view is expressly statE:d in Section 34-1904 of the Amended Code of Georgia.
The c:reation of the office of Lieutenant-Governor in this State by the Constitution of Georgia adopted in 1945 abolishes the office of the president of the Senate as it existed undE:r the prior Constitution.
There is. no Georgia legal authority for the view that the LieutenantGovernor, by virtue of his election to that office, would become the chosen and qualified successor to the incumbent Governor under the present circumstances immediately upon his qualification as Lieutenant-.GovE:rnor. The only legal authority I am able to find which addresses itself to this point is a case arising in the State of North Dakota, and reported as State v. Moodie, 58 N. W. 558-568. Upon examination of this case, I have reached the conclusion that because of some differences in the constitutional and statutory provisions of that State and the provisions of our own State Constitution, the case would probably not be applicable in the present situation. Moreover, in view of your expressed purpose of resigning the office of Governor immediately after the duly elected Lieutenant-Governor is qualified, it is unnecessary that I explore this theory.
Upon the qualification of the Lieutenant-Governor and your resignation as Governor, the Lieutenant-Governor would become vested with the Executive power of the State under the Constitution of Georgia until the next general election, at which time the people would elect a Governor.
The Law Department has made an exhaustive research of the authorities on the questions herein involved and will, if requestE:d by you, furnish a complete brief of all authorities on said questions in addition to the authorities cited herein.

EXECUTIVE DEPARTMENT-Governor A bill passed by the General Assembly and signed by a person designated as Governor in a void election by the General Assembly is invalld unless presented to the Acting Governor for revision.

Hon. M. E. Thompson

March 19, 1947

Acting Governor

I am pleased to acknowledge your request for an official opm10n on the

status of the Acts passed by the 1947 GenE:ral Assembly and signed by Herman

Talmadge.

The facts relating to your election are of common knowledge to all citizens

of Georgia. Both you and Mr. Herman Talmadge have been actively attempting

to exercise the executive powE:rs of the State and both of you have claimed to

be the legal governor. The Supreme Court of Georgia in a decision today,

March 19, 1947, definitely determined this issue in holding that you as Lieu-

tenant Governor succeeded to the power and duties of Governor upon the

resignation of former Governor Ellis Arnall, and that Mr. Talmadge had no

right or title to the office of Governor.

The Supreme Court in its decision relating to the title of Governor said:

"(a) ThE: death of Honorable Eugene Talmadge after his election by the

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people and before publication of the returns by the General Assembly did not change the duty of that body to declare his election nor authorize the General Assembly to declare by resolution that because of his death no person had a majority of the votes and to elect a Governor.
(b) Accordingly, whore in such circumstances the General Assembly undertook to elect another person as Govornor, namely, the Honorable Herman Talmadge, such attempted election was a void act, which did not t:onfer upon him any right or title to the office of Governor." (Emphasis supplied).
The rule of law applicable to this situation was previously enunciated in 43 Am. Jur. at Section 473, as follows:
"There cannot be two persons in possession of an office at the same time, even when the two are the de jure and the de facto officers. Accordingly, an officer or body claiming to bE: such de facto cannot oust or destroy the power gf an officer or body de jure by taking partial possession of the room where the officer or body de jure is in possession and transacting business."
Our Court of Appeals in the case of Beddingfield v. First National Bank, 4 Ga. App. 197, followed the above rule in holding as follows:
"And he cannot be a de facto Judge of a County Court because thtre is already a Judge of the County Court de jure and it is well settled that the1e cannot exist at one and the same time an officer de jure and one de facto, or even two de facto officers."
As noted above the Supreme Court in its decision today held that the attempted eloction of Herman Talmadge by the General Assembly was a void act which did not confer upon him any right or title to the office of Governor.
Paragraph 15 of Section 1 of Article 5 of the Constitution provides in part as follows:
"The Governor shall have the revision of all bills passed by the General Assembly before the same shall become laws."
Since the Constitution makes it mandatory that the Governor have the revision of all bills passed by the General Assembly it is necessary that such bills be presented to the lawful Governor of the State or to someone representing the lawful Governor.
I am, therefore, of the opinion that all bills passed by the 1947 General Assembly thus far, which were not properly presented to you as Acting Governor or to your lawful representative are invalid and in violation of the Constitution of Georgia, unless and until they are properly submitted to you in accordance with the Constitutional requirement and within the time prescribed by law.
It is my suggestion that in order to expedite tho handling of these Acts, you request the General Assembly to pass a joint resolution requesting the Secretary of State to return to the respective bodies all bills signed by Herman Talmadge and direct that they be submitted to you as Acting Governor of Georgia.

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EXECUTIVE DEPARTMENT-Governor The Governor may not appoint a committ(;e from each House of the General Assembly to complete the work of enrolling local acts where the General Assembly omitted to make the certificate of advertisement a part of the enrolled act.
November 14, 1947 Hon. M. E. Thompson Acting Governor
In my letter of October 30th which was in response to your letter of October 29th relating to the rec(;nt decision of our Supreme Court in the case
of Smith et al., Commissioners, v. McMichael, et al., * I stated that your re-
quest would be held in abeyance until after the Supreme Court had acted upon a motion for rehearing which was pending at that time. Since the motion has been disiX>sed of by the Court, it now becomes my duty to respond to your request in which the following question is asked:
"I wish you would advise me as to my authority to appoint a committee from each House of the General Assembly to complete the work of enrolling these local Acts where the Legislature has inadvertently omitted to make the notice of advertisem(;nt a part of the enrolled Act."
There is no law which authorizes you to appoint a committee to make the clerical corrections as outlined in your letter. Silence on the part of the Constitution and statutory laws in this respect are tantamount to negation, since the powers and duties of public officers are defined by law. See, Code Section 89-903. Likewise, it cannot be said that th(; Governor has implied powers to appoint a committee to make the corrections on the enrolled Acts as suggested, since public officers by implication only have such powers as are necessary for the due and efficient exercise of those expressly granted, or such as may be fairly implied therefrom. (Taylor v. State, 44 Ga. App. 387).
While the Supreme Court in th(; case of Smith e~ al., Commissioners, v. McMichael, et al., supra, did not have the question now presented under consideration, it would nevertheless seem that the general tenor and import of that decision would be opposed to allowing a committee to make changes in the enrolled Act at this time. The VHY fact that the Supreme Court held that the Constitution prohibited the judiciary from going behind the enrolled Act to look at the contents of the original bill, would seem to also say that a committee appointed by you could not do that which the Court itself was precluded from doing.
In DeLoach v. Newton, 134 Ga. 739, at page 746, the Supreme Court, in discussing the question of making corrections on the entries of the House Journal, held as follows:
"It is the duty of the Secretary of the Senate and the Clerk of the House of Representatives to have correct entries made, so that the Journals shall truly show the history of the transactions of the legislature and of each bill introduced; and there are journalizing committees charged with a similar duty. The journals are deposited, after completion, with the Secretary of State. There is no law by w.hich mistakes in them can be 1::orrected. It would be unfortunate, indeed, if, an accidental error by the clerk, beyond correction, must be seized on
0 45 S. E. 2d 431, decided October 24, 1947.

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by the courts to destroy the Act, unless it is clearly so required." (Emphasis supplied)
It seems that the above language of the Court very definitely supports our position to the effect that there is no law to authorize any person or group of persons to make the corrections complained of in the enrolled Acts. Such action cannot be taken without proper legal authorization.
In coming to the conclusion that you cannot appoint a committee to make these desired corrE:ctions in the enrolled Acts, I am not unmindful of the expediency and public benefit which would be derived from carrying out your proposal. However, it is my duty to advise you as to the legality of the suggested plan, rather than as to its expediency, and I am forced to the conclusion that there is no legal authority to support the proposal contained in your letttr.
EXECUTIVE DEPARTMENT-Great Seal of the State The State Seal may not be used on a road map published by a private concern without the approval of the Governor or the General Assembly.
NovE:mber 20, 1945 Hon. Ward Harrison, Director Parks Department
You have referred to me for an op1mon an inquiry from Rand McNally and Company to the Secretary of State, dated November 14, in regard to the use of the State seal on a proposed road map.
After reviewing Section 3, Paragraph 1, Article 5 of the Constitution of 1945, and Section 26-3915 of the Georgia Code Annotated, it is my opinion that such use of the seal would be illegal unless approved by the Governor or the General Assembly.
EXECUTIVE DEPARTMENT-Meri~ System (1) The 1945 Constitution created the State Personnel Board to supplant the statutory Merit System Council. (2) The Governor may establish a merit system for the state and county departments of health, of public welfare, and the State Bureau of Unemployment CompE:nsation only. October 24, 1945
Hon. Ellis Arnall, Governor of Georgia
Your letter of October 17th received. You request that I give my official opinion on the following inquiry:
"Do I, as Governor, have the authority to install this suggested Merit System under Executive Order to be administered by the State Personal Board, which said Board was crE:ated under the new Constitution but which, at the present time, has no responsibilities or duties? Did the adoption of the new State Constitution abolish and abrogate the State Merit Council? Would the duties and responsibilities of the Council be automatically vested in the State Personnel Board?"
Paragraph 1, Section 1, Article 14 of the Constitution of 1945 provides as follows:

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"State Personnel Board. A non-salaried State Personnel Board comprised of three citizens of this State, of known interest in the improvement of public administration, sha.ll administer a State Merit System under which state personn>1 shall be selected on a basilil of merit, fitness, and efficiency according to law. The members of the State Personnel Board shall be appointed by the Governor with the advice of the Senate. The first members shall be appointed for terms of three, five and seven years, respectively, the terms to be designated by the Governor. All subsequent appointments shall be for a period of s>ven years, except unexpired terms. No State official or employee shall be a member of the State Personnel Board."
This provision of the Constitution provides that the State Personnel Board, which is created by the Constitution, shall administer a State Merit System, under which state personnel shall be selected on a basis of merit, fitness, and E>fficiency, according to law. I am of the opinion that the provision of the Constitution is not self-enacting, but requires a Merit System to be set up by stautory authority. It therefore becomes necessary to determine what State Merit System is now in existence by reason of the enactment of legislation by the General Assembly.
The only Merit System authorized by statute is that provided for in an Act approved February 4, 1943 (Ga. L. 1943, pp. 171-177). S>ction 1, paragraphs (a) and (b) of the Act, provide as follows:
"(a) That there is authorized to be created and established a merit system of personnel administration covering the employees of the State and County Departments of Health, the State and County Departm>nts of Public Welfare, (other than employees of eleemosynary institutions, and County Welfare Board members) and/or the Bureau of Unemployment Compensation of the State Department of Labor.
"(b) The Governor shall be authoriz>d in his discretion to order the creation of such merit system by Executive Order. Such order shall specify the department or departments above enumerated which shall be covered by said system and the effective date of said system in each department so covered."
From the quoted provisions of the Act, thE> General Assembly has authorized the establishment of a Merit System of Personnel Administration, covering the employees of the State and County Departments of Health, Department of Public Welfare, and Bureau of Unemployment Compensation of the State Department of Labor, whenev>r the Governor, in his discretion, authorizes the Merit System by Executive Order. The General Assembly directed that the Executive Order shall specify the Departments named.
Under the Act of 1943, the Merit System established was to be administered by the Muit System Council, which Council was to be established by the Executive Order of the Governor. The Act outlines the powers and duties f the Merit System Council.
It is my opinion that the Merit System Council authorized by the Act of 1943 :is supplanted by the provision of the new Constitution quoted above. The Constitution of 1945 provides that the State Personnel Board shall administer the State Merit System s>t up according to law. The State Personnel Board provided for in the Constitution takes the place of the Merit System Council, and in my opinion, has the right and power to perform the duties and to ex-

310
ercise the powers given to the Merit System Council by the Act of 1943. It is provided in Paragraph 3, Section 1, Article 12 of the Constitution of
1945, that all laws of force in the State, not inconsistent with the Constitution, shall remain of force and effE:ct until modified or repealed by the General Assembly. The Supreme Court, in Felton v. Bennett, Superintendent of Banks, 163 Ga., 849, outlines the general rules to be applied in determining whether a legislative enactment offends a constitutional provision, and among the rules are:
"(1) All doubts upon the subject of unconstitutionality are to be resolved in favor of constitutionality, in order (if it be legally possible) to give effect to thE: manifest legislative intent.
"(2) If it be found that the enactment is in some respect ,invalid, and such portions must be avoided, the Court will, nevertheless, prese1rve all portions of the legislation which are valid and enforceable."
It is the manifest legislative intention of thE: General Assembly that the named Departments of the State and their employees shall be governed by a Merit System of Personnel Administration. It is the manifest intention of the people of the State, by the adoption of the Constitutional provision above quoted, that a State Personnel Board shall administE:r a State Merit System, m11der which State Personnel shall be selected on a basis of merit, fitness, and efficiency, according to law.
The Act of 1943 should be construed in the light of the constitutional provisions, and that part of the Act which is not in conflict with the Constitution of 1945 should be retained to carry out the legislative intent, where possible. Construing the Act of 1943 in the light of the Constitution of 1945, I am of the opinion that the State Personnel Board takes the place of the Merit System Council, and is fully authorized and empowered to administer the ME:rit System over such State Departments to which the Act of 1943 is applicable.
I am of the further opinion that the Governor is fully authorized, in his discretion, to create, by executive order, the Merit System to apply to the State and County Departments of Health, the State and County DepartmE:nts of Public Welfare, and the Bureau of Unemployment Compensation of the State Department of Labor; but I do not think that the Governor is authorized to go beyond the legislative direction given by the Act of 1943, and to establish a Merit System to cover all of the branches of the State.
I am of the opinion that it will be necessary for the General Assembly to sr,t up a Merit System by legislative enactment, applying to all Departments of the State, or else to empower and authorize the Governor to create and set up such a System applying to all Departments of the State.

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EXECUTIVE DEPARTMENT-Merit System Employees of centers operated by the Department of Public Health which provide for medical treatment for venereal diseases are exempt from the operation of the merit syst6m laws. November 16, 1945
Hon. Edwin L. Swain, Director State Merit System
I am pleased to acknowledge your letter of November 8th, in which you state the following:
"During the special drive for the control of vener6al disease carried on in the past two years, the U. S. Public Health Service has made available funds for the operation of rapid treatment centers in most of the states. These centers are, in effect, hospitals in which a patient stays for nine days to receive a special course of treatment for the cure of venereal diseases. All of the medical and nursing attention, as well as drugs, food, housing, and transportation to and from the center, are provided free of cost to the patient."
You request an official opinion as to whether the employees of the said institutions located at Savannah and Augusta will be subject to the jurisdiction of the State Personnel Board when the Georgia Department of Public Health assumes responsibility for their operation.
Section I (a) of the Act creating the Merit System (Ga. L. 1943, pp. 171177) provid6s as follows:
"There is hereby authorized to be created and established a merit system of personnel administ!ation covering the employees of the State and County Departments of Health, the State and County Departments of Public Welfare, (other than employees of eleemosynary institutions, and County Welfare Board members) and/or the Bureau of Unemployment Compensation of the State D6partment of Labor."
The above provision of law expressly exempts employees of eleemosynary institutions from the Merit System. The question to be determined is whether or not the institutions located at Savannah and Augusta as described in your letter are to be properly classified as el6emosynary institutions. In 14 Words and Phrases, (Perm. Ed.) 225 the following definitions are found:
" 'Eleemosynary' means, according to Blackstone, something constituted for the perpetual distribution of alms or bounty of the founder. Cresson vs. Cresson, 6 Fed. Cas. 807."
" 'Charitable' is practically synonymous with 'eleemosynary,' the latter being technically 6mployed to designate a class of corporations organized for charitable purposes. People vs. Fitch, 39 N. Y. S. 926."
"Eleemosynary corporations 'are such as are constituted for the perpetual distribution of the free alms and bounty of the founder, in such manner as he has directed; and in this class are ranged hospitals for the relief of poor and impotent persons, and colleges for the promotion of learning and piety, and the support of persons engaged in literary pursuits.' Dartmouth College Trustees vs. Woodward, 17 U. S. 518.''
In keeping with the above definitions, I am of the opinion that since the hospitals in qu6stion are operated purely as a public charity, such centers should be classified .. as eleemosynary institutions and that the employees thereof are not subject to the Merit Systom laws of this State.

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EXECUTIVE DEPARTMENT-Merit System The exemption of employees of eleemosynary institutions from the Stat~:: Merit System applies only to those institutions under the jurisdiction of the State Department of Public Welfare and does not exempt personnel of Battey State Hospital or Alto Medical Center.
April 3, 1947 Hon. Edwin L. Swain Merit System Director
I am pleased to acknowledge your letter of April 3rd in which you ask whether or not the personnel of Battey State Hospital located at Rome, and the Alto Medical Center should b~:: under the jurisdiction of the State Personnel Board as set forth in the Merit System Act. (Ga. L. 1943, pp. 171-177). Your letter also recites that Dr. Abercrombie, Director of the State Board of Health, advises that the above named institutions are a part of the State Department of Public Health and under the control of the State Board of Public Health.
Section I of the Act above referred to, reads in part as follows: "(a) That there is authorized to be created and established a merit system of personnel administration covering the employees of the State and county departments of health, the state and county departments of public welfare, (other than employees of eleemosynary institutions, and county welfare board members) and-or the Bureau of Unemployment Compensation of the State Department of Labor." The above provision of law clearly provides that the employees of the State Department of Health are cov~::red by the provisions of the Merit System Act. Since Battey State Hospital and Alto Medical Center are a part of the State Department of Public Health, it therefore follows that the personnel of these two institutions is legally under the jurisdiction of the State Personnel Board. The exemption of employees of eleemosynary institutions only applies to those institutions under the jurisdiction of thE: Department of Public Welfare. Such eleemosynary institutions under the jurisdiction and control of the Department of Public Health are not exempted from the Merit System Act. It is therefore my opinion that the personnel of the above stated ins:itutions is subject to the jurisdiction of the State Personnel Board and cov~::red by the provisions of the Merit System Act.
EXECUTIVE DEPARTMENT-Secretary of State The Secretary of State may delegate ministerial and clerical duties of a fiscal nature to an employee in his office, but remains legally responsible for their performance.
F~::bruary 20, 1946 Hon. John B. Wilson Secretary of State
Your'letter of February 14th, enclosing copy of order appointing Honorable J. J. Medlin fiscal officer of the Department of State, received.
You request my official opinion on the question of whethu or not the order is legal, and whether or not you can delegate to Mr. Medlin. the duties named in the order.

313
The duties delegated to Mr. Medlin, an employee in your office, are largely ministerial and clerical. No duty which the statute directs shall be performed personally by you is delegated. Mr. Medlin is required to give bond in the amount of $10,000 for your protection. Mr. Medlin has sE:cured bond in the sum of $10,000, payable to you as Secretary of State, executed by Glens Falls Indemnity Company, and the bond has been approved and is of file in your office.
I have examined the statutes regulating your powers and duties, and the authority and duties of public officers in general. There is no general statute which would prohibit a departmental head from delegating such ministerial or clerical duties as are outlined in your order to im employE:e in the Department.
It is, therefore, my opinion that the order is legal and that you have the power and right to delegate the responsibilities and duties outlined in the order to Mr. Medlin, an employee in your office.
The performance of the duties by Mr. Medlin shall remain the performance of the duties by the Department of the State and you, of course, will remain legally responsible to the State for the performance of the same. You and your bond will remain responsiblE: to the State for any failure to perform any of the duties in the manner prescribed and required by law, and for a correct accounting to the State for any and all funds handled by Mr. Medlin under the order.
EXECUTIVE DEPARTMENT-Secretary of State The Secretary of State is bound to obey an injunction granted against him as soon as he is informed that the injunction has been granted.
December 12, 1946 Hon. Ben W. Fortson, Jr. SecrE:tary of State
You have requested me to give you an official opinion on the following question:
"Are you bound to desist from placing the great seal of the State of Georgia on the commission issued by the Governor when you have been informed by one representing himself to be an attorney for the pE:titioner of the existence of an injunction to restrain you from such action even though the writ has not been served?"
The Supreme Court of Georgia in the casE: of Murphey v. Harker, 115 Ga. 77, held that:
"One against whom an injunction has been granted is bound to obey the same as soon as he is informed of the fact that the injunction has been granted, although he may not have been then served with a copy of thE: writ."
The foregoing conclusion was reached by the Supreme Court in the case of Patten v. Miller, 190 Ga. 152. In that case the court said:
"While Patten was not personally served with the petition and rE:straining order until about midnight on Wednesday, December 6, it appears from his own testimony that through the medium of the press he learned on Monday that a restraining order had been that day issued against him, enjoining him and others from 'interfering with Mr. Miller as Chairman of the Highway

314
Board.' In this connection the judge was authorized to conclude, from the defendant's testimony and the other evidence introduced, that he had ample notice of the restraining order."
The same reasoning is followed in 43 C. J. S., Injunctions, Sec. 261, which holds that:
"It is altogether immaterial how the defendant acquires information of the existence of the injunction; when once he has been apprised of the fact, he is legally bound to desist from what he is restrained and inhibited in doing."
Therefore, assuming that you have received information from one who represents himself to be an attorney for the petitioner in an injunction suit, even though you have not actually been served .with the writ, it is very clear that you are compelled to desist from doing the act inhibited by the injunction.
EXECUTIVE DEPARTMENT-Se=retary of State The Secretary of State may not correct errors in county maps on file in his office.
October 1, 1947 Hon. Ben W. Fortson, Jr. Secretary of State
In relation to the contention that certain errors were made in one of the county maps on file in your office, I am glad to direct your attention to a part of Section 40-604 of thf: Code which I believe sets forth your duties in matters of this nature.
"The Secretary of State shall also discharge the following duties, heretofore devolving on the Surveyor General, to wit:
"1. Care of plats. To keep safely all the record of plats of land granted, and to report the condition of such records to the Governor at least once a yE:oar. returned to him by the several county surveyors, or other surveyors acting
"2. Record of plats. To record all plats of land legally authenticated and by authority, for which grants are sought, and to attach the originals thereof to the grants."
The other provisions of Section 40-604 are not directly in point and therefore have not been quoted. The law does not authorize you to personally make corrections on county maps or plats. If it is determined that the record is incorrect it would seem that the new map would have to be authenticated by the county surveyor or some other surveyor acting under his authority. When this is done it would be your duty to file the corrected map with the other records in your office.
As Secretary of State it is primarily your duty to keep records, but not to change or alter such records without proper authority from the county surveyor or positive direction from the General Assembly.

315
EXECUTIVE DEPARTMENT-State Treasurer The State Treasurer may honor a warrant mad~; payable to "Treasurer, State Highway Department," but not designating that officer by name.
February 14, 1947 Hon. George B. Hamilton State Treasurer
I am pleased to acknowledge your letter of February 14th, in which you state the following:
"I am enclosing herewith warrant number 868 dated F~;bruary 13, 1947 payable to Treasurer, State Highway Department for $62,500.00. I am asking that you render me an opinion as to my responsibility and duties in the payment of this warrant as written without the name of the Treasurer. I would like this opinion to be as fully explanatory as possible giving to me your definite conclusion as to what action I should take.
"Due to the fact that payrolls are now due in the Highway Department I would ask for your immediat~; ruling."
Warrant No. 868 shows that same was drawn by Hon. B. E. Thrasher, Jr., State Auditor, and countersigned by Hon. Zach D. Cravey, ComptrollerGeneral. It likewise provides that it is issued for "operating cost of Department, per Legislative Appropriation per approved quarterly budget, per approval of legal expenditures as stipulated in attached certificate."
The letter attached to the warrant signed by Hon. B. E. Thrasher, Jr., under date of February 13, 1947, r~;ads in part as follows:
"This warrant is executed in accordance with approved budget on file, in accordance with the Legislative appropriation, and for the purpose provided by Legislative enactment for which the funds may be expend~;d and under budget regulations are to be expended only for items not in controversy as set out in the attached certificate."
The warrant in question is made payable to "Treasurer, State Highway Department."
It must be assumed by you as State Treasurer that the State Auditor has on file a proper requisition for the funds requested in this warrant and that the money will be spent in accordance with the approved budget.
In Americus Grocery Company v. Pitts Banking Company, 169 Ga. 70, the Supreme Court of Georgia held:
"It must be assumed that all public officers will perform the duties imposed by law."
Section 40-414 of the Amended Code authorizes the State Auditor to draw warrants on the State Treasurer. This provision of law provides in part as follows:
"After the approval of a quarterly budg~;t by the budget officials, the Governor is authorized to execute his warrant on the treasury or he is hereby authorized to delegate this duty to the State Auditor...."
From the above provision of law, it is clear that the State Auditor may be properly authorized to execute the warrant now under consideration.
Your t;luties as State Treasurer are enumerated under Section 40-1101 of the Code, and briefly may be summarized as follows:
"1. To receive and keep safely all money which shall be paid to him in behalf of the State (giving certificates therefor, which shall specially set forth

316
the amount, on what account, and by whom paid, and shall be lodged as vouchers in the Comptroller's office), and to pay out the same only upon the warrants of the Governor, when countersigned by the Comptroller-General, ..."
"2. He shall keEop a durable book, wherein he shall enter each day, in charge against himself, all and every sum of money received by him, stating from whom and on what account received, and per contra, crediting himself with any and all sums disbursed by him in any manner, stating to whom paid, when paid, and on what account or purpose paid; and for all disbursements whatsoever, he shall take receipts or other vouchers therefor. He shall also keep a true and faithful record in a book of all warrants drawn by the Governor on the treasury, stating the number of the wan-ant, the amount, the date and the payee of the same, and to what fund same is chargeable, and he shall carefully keep on the file said warrants." (Emphasis supplied).
Since the warrant in question is made payable to the "Treasurer, State Highway Department," the question naturally arises as to whether this designation is sufficient to constitute a lawful payee in compliance with the above statute. In this connection it should be noted that Section 95-1609 of the Amended Code creates the official office of Treasurer of the State Highway Department. This statute reads in part as follows:
"Immediately upon the appointment and qualification of the Treasurer of the State Highway Department, he shall enter upon his duties which shall be to receive and receipt for all funds from all sources to which the State Highway Department is entitled; ..."
Since the office of Treasurer of the State Highway Department is created by statute, I am of the opinion that you would be amply protected in honoring the warrant made payable to that statutory officer. It is not necessary in this particular instance that the name of the individual occupying this office be inserted since your check can be issued in conformity with the warrant and made payable to the statutory officer of Treasurer of the State Highway Department. You are required to officially recognize only the officer created by legislative authority, and it is not encumbent upon you to recognize any particular individual in that position. In other words, in my opinion, it is not your responsibility to determine the rights of any particular person to exercise the functions of the office of Treasurer of the State Highway Department. Your responsibility is ended whon a check is issued in conformity with the warrant payable to the officer created by the Legislature. This statutory officer in my judgment, will be a proper payee on a check issued in conformity with this warrant.
As Attorney General of the State of Georgia, it has been my consistent policy from the inception of the gubernatorial controversy to exert every effort possible toward aiding all State agencies and employees in carrying on the normal functions of our government. It is to the best interests of all citizens that we cooporate to the fullest possible extent under the present trying conditions and that all proper employees of the State government whose names appear on the approved budget be paid their salaries when due, and that other obligations of the State goTernment which have been duly approved in accordance with law be likewise promptly paid.

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EXECUTIVE DEPARTMENT-Supervisor of Purchases The State Milk Control Board's contract of advertising to E:ncourage the production and consumption of milk must be made through the Supervisor of Purchases or with his authority.
October 1, 1945 Hon. George D. Stewart, Director State Milk Control Board
Your letter of September 21st received. You request that I advisE: if it is necessary for a contract of advertising, having for its pu~pose an educational program to encourage the consumption and production of milk, to be made through the Purchasing Department, or whether the Director, with the approval of the Board, has the authority to make thE: contract without going to the Purchasing Department.
In my opinion paragraph C of Section 40-1902 of the Cumulative Pocket Part of the Code of 1933 answers your question. Section 40-1902 of the Code provides that the Supervisor of Purchases shall have power and authority and it shall be his duty subject to the provisions of this Chapter:
"C. To contract for all telephones, telegraph, electric light power, postal and any and all other contractual purchase and nE:ed of the State Government, or any of its departments, institutions or agencies; or in lieu of such contract to authorize any department, institution, or agency to purchase or contract for any or all such services."
Under the provisions of this Section of the Code, as quoted above, it is my opinion that it will be necE:ssary for your Department to obtain its contract for advertising the educational program to encourage the consumption and production of milk through the Purchasing Department, or in lieu thereof, that you obtain from the Purchasing Department authority to enter into the contract.
EXECUTIVE DEPARTMENT-Supervisor of Purchases The Supervisor of Purchases may not make purchases for city boards of education.
October 11, 1945 Hon. W. N. Pate Supervisor of Purchases
Allow me to acknowledge your letter of October 4th, inquiring as to whether or not thE: Supervisor of Purchases is authorized under the law to make purchases for City Boards of Education as well as County Boards of Education, under Section 6 (b) of the Act of 1939.
The Department of Purchases and office of Supervisor of PurchasE:s have their being through the Act of the General Assembly creating it, and such later acts as may have been passed by the General Assembly, amending the original act.
The law itself sets out rather specifically the duties of the Supervisor of Purchases and his powers, and since nowhere in thE: Act am I able' to find any provision authorizing the State Supervisor of Purchases to act for a City Board of Education, it is my opinion that you have no such authority.

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EXECUTIVE DEPARTMENT-Supervisor of Purchases The Supervisor of Purchases may cancel purchase orders where the material fails to meet specifications.
January 25, 1947 Hon. W. N. Pate SupHvisor of Purchases
Receipt is acknowledged of your letter of January 20, requesting an opinion as to the legality of your action in canceling purchase orders issued to bidders in connection with the purchasing of materials for the State.
I am of the opinoin that your action in such matters is one of an administrative function undu the powers delegated to you in Chapter 40-19 of the Code of 1933, Cumulative Pocket Part, and that your action in cancelling a purchase order is authorized under Section 40-1902 (B), wherein you are authorized to establish and enforce standard specifications which shall apply to all supplies, materials and equipment, purchased or to be purchased for the use of the State Government for any of its departments, institutions or agencies.
It is evident from the case set forth in your letter that the bidder did not meet the State requirements in furnishing the State the desired type of seeds needed by the Fish and Game Department. The price per pound as bid by the bidder in this case, being equivalent to the normal price of scarified seed, was apparently considered by your Department as a bid to furnish scarified seed. Upon learning that the bidder did not intend to furnish scarified seed, it appears that your authority to estabhsh and enforce standard specifications was sufficient to authorize you to cancel the purchase order.
FOOD AND DRUGS~Dairies and Dairy Products Only two members of the Milk 'control Board may be appointed from any one congressional district.
August 21, 1947 Hon. M. E. Thompson Acting Governor
I am pleased to acknowledge your letter of August 19th, in which you state the following:
"In appointing the State Milk Control Board, I appointed three members from the Fifth Congressional District. I wish you would advise me if this is legal and if it is not, must some member of that district be removed from the Board."
I believe your inquiry is answered by Section 42-525 of the Supplement to the Code, which provides as follows:
"There is hereby crE:ated a Milk Control Board to consist of eight members. The membership of the Board shall be maintained to include two producers; two producer distributors, one of whom shall be a member of a cooperative marketing association; one distributor; two consumers, and one store licensee. The members of the Board shall be appointed by and shall servE: at the pleasure of the Governor and not more than two members of said Board shall .b,e appointed from any one congressional district of the S~ate. Each appointed member shall be paid from the milk control fund $6.00 for each day actually

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engaged in official functions of the Board plus subsistencE: and necessary traveling expenses." (Emphasis supplied).
In compliance with the above statute, you can only appoint two members vf the Board from the same congressional district. The above statute makes it illegal for more than two members to serve from the Fifth Congressional District, and it therefore follows that some member from this district. should be rE:moved from the Milk Control Board.
FOOD AND DRUGS-Dairies and Dairy Products The Milk Control Board may, in the exercise of its discretion, defer a vote on a pending matter until its next regular meeting.
September 25, 1947 Hon. W. B. Hyde, Director State Milk Control Board
This will acknowledge your letter of September 25th, in which you state that at a meeting of the Milk Control Board held on SeptembE:r 3, 1947, a matter was voted upon in connection with the Thomasville Milk Shed. You state that the six members by a tie vote agreed to defer action on the matter until the next regular meeting of the Board which was held September 24th. You dE:sire to know whether or not the action of the Board in deferring action on the Thomasville matter for the next regular meeting is in violation of the law. I understand that all six members agreed for this matter to be considered at the next regular meeting which was held September 24th.
The question of deferring matters properly before the Board from one meeting to the next comes within the sound discretion of thE: Board. I can see no legal objection to six members of the Board agreeing to refer a matter to the next regular meeting where it is believed all membtrs will. be present. Matters of this nature are classified as internal problems of procedure to be determined by the membership of the Board. As long as thE: Board in the exercise of its wide discretion in matters of procedure does not violate some mandate of law, I am of the opinion that it is free to exercise its judgment and discretion in a matter such as the one now presented.
In your letter you do not point out any provision of law which the Board is chargE:d with suspicion of violating in passing on this matter at its regular meeting. Since no indication of a law violation is referred to in your letter, I must likewise come to the conclusion that the Board has acted within the sphere of its jurisdiction in considering the aforesaid matter which was referred to it from a previous meeting.
FOOD AND DRUGS-Feed Ground and cracked grains prepared for feeding purposes must have an analysis tag and inspection fee stamp. February 19, 1946
Hon. Tom Linder CommissionE:r of Agriculture
I am pleased to acknowledge your letter of recent date, in which you state the following:
"Will you please give me an opinion as to whether or not the Georgia Feed

320
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 42-205 of the Code provides in part as follows:
"Each manufacturer, importer, jobber, agent or seller 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 concentrated 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 charges specified in this section have been paid: Provided, that the inspection tax of 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 seeds, not mixed with other substances, but sold separately as distinct articles of commerce.... "
The above statute clearly 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.
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 and analy11is tag 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. On the other hand, if the seeds or grains are ground or cracked and thereby especially prepared for feeding purposes, 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 meal, germ feeds, corn f;eds, starch feeds, sugar feeds, dry brewer's grains, malt sprouts, dried distiller's grain, 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, mixed 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 especially 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, !lold, or offered or exposed for sale, shall be registered annually with the Commissioner of Agriculture, and shall have affixed thereto, or printed on the bag or other package, in a conspicuous place on the outside thereof, a

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legible and plainly printed statement, clearly and truly certifying the number of net pounds of feeding stuff contained therein: Provided, .... "
FOOD AND DRUGS-Fish Dealers The Food and Drugs Act imposes a regulatory fee on wholesale fish dealers in addition to the license tax imposed by the General Tax Act.
March 29, 1946 Hon. Tom Linder Commissioner of Agriculture
I am pleasE:d to acknowledge your recent letter in which you ask whether or not Par. 54 of the General Tax Act (Section 92-1001 of the Amended Code) conflicts with the Act of 1939, pp. 316-319, (Chapter 42-11 of the Amended Code) since each of these laws appears to impose a license fee of $50.00 upon fish dealers. The provision of the General Tax Act reads as follows:
"Sec. 92-1001. Fish Dealers.-Each person, firm, or corporation engaged in the business of packing or shipping oysters, shrimp, or fish, shall pay $50.00 for each county in which business is carried on: Provided, however, that the provisions of this section shall apply only to original shippers and/or packers."
The above tax is subject to the administrative jurisdiction of the CommissionE:r of Revenue.
Chapter 42-11 of the Food and Drugs Act makes it the duty of the Commissioner of Agriculture to collect the license fees imposed by this Act. Section 42-1103 (a) provides as follows:
"The annual license fee for each and every rtsident wholesale fish dealer shall be the sum of $50.00 for each place of business, fixed or movable; the annual license fee for each nonresident or alien wholesale fish dE:aler shall be the sum of $50.00 for each place of business, fixed or movable...."
Since the General Tax Act, which is administered by the Commissioner of Revenue, was passed prior to Chapter 42-11, it will readily be seen that nothing contain(:d in the former Act can in any way prohibit the collection of the license fee required to be collected from wholesale fish dealers by the Commissioner of Agriculture. This latter Act is not a tax Act, but rather imposes a regulatory fee to be used for the enforcement of sanitary and health rules.
FOODS AND DRUGS-Oleomargarine (1) The Acts of 1882 and 1883 relating to oleomargarine have been repealed. (2) The State Department of Agriculture may not require manufacturers to furnish monthly statements of oleomargarine shipped into Georgia.
May 6, 1947 Hon. T. B. Clower Chief Veterinarian DE:partment of Agriculture
This will acknowledge your letter of May 2, in which you request an opinion as to (1) whether the Laws of 1882 and 1883 have been repealed regarding oleomargarine, and (2) under what statute may the Department of Agriculture

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require manufacturers to furnish monthly statements of oleomargarine shipped into Georgia.
With reference to your first inquiry it is found that Code Sections 42-9909 and 42-9910 have been repealed by the Act of 1945, Page 342. These sections were the codification of the Laws of 1882 and 1883 regarding oleomargarine.
With reference to your second inquiry, Code Section 42-106 provides as
f~llows:
"Rules and regulations for enforcemE:nt.-The Commissioner of Agriculture, with the advice of the Attorney General, may establish such rules and regulations as shall not be inconsistent with the provisions of this Title, and as in his judgment will best carry out the requirements thereof."
Code Section 42-1003, regarding an excise tax on oleomargarine, provides as follows:
"Rules and rE;gulations.-The State Department of Agriculture is hereby empowered to promulgate such rules and regulations as are consistent with the provisions of this Chapter."
If such a requirement could be made, it would necessarily have to be under the authority of these Code Sections, because no statute is found which authorizes the Department of Agriculture to require manufacturers of oleomargarine to furnish monthly statements concerning the shipment of same into this State, but it is my opinion that these Code Sections likewise do not give that authority.
FOOD AND DRUGS-Sanitation (1) The State Board of Health has general supervisiOn over all matters
relating to the preservation of life and health, while the Department of Agriculture has direct and positive authority over sanitary and health matters in relation to food and food products.
(2) The functions of one department may not be tr:;~nsferred to another by executive order.
September 10, 1947 Hon. M. E. Thompson Acting Governor
I am pleased to acknowledge your letter of August 25th, in which you state that the Agricultural and Industrial Development Board has adopted as a main project the development of interests related to the tourist business in Georgia. In this connection, you ask that I advise you as to the responsibilities of various departments of the State government in exercising supervision and control over certain activities, such as sleeping places, eating places, rest rooms and general sanitary facilities for the public.
The State Board of Health is given general supervision over all matters relating to the preservation of the life and health of the people. This authority is contained in Section 88-112 of the Code, which provides in part as follows:
"The State Board of Health shall have supervision of all matters relating to the preservation of the life and health of the people."
Section 88-9916 provides a penalty for a violation of health laws or proper rules and regulations passed in pursuance thereof.

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The above statutes make it clear that the Legislature has granted general authority to the State Board of Health to supervise all matters relating to the preservation of the life and health of the people. There are no exceptions contained in this grant of authority. In other words, the State Board of Health has supervision over the sanitation of all facilities and activities relating to the health of the public. If the activity or facility in question nJates in any manner to the life or health of the people, it is a safe rule to follow in holding that the State Board of Health has general supervision over such matters.
The Department of Agriculture is given direct and positive statutory authority over sanitary and health matters in relation to food and food products, employees, clerks or other persons therein employed, and the premises on which the same may be prepared or served. This provision of law is found in Code section 42-117 as follows:
"Every place occupied or used for the preparation for sale, manufacture, packing, storage, sale or distribution of any food shall be properly lighted, drained, ventilated, screened, and conducted with strict regard to thE: influence of such condition upon the health of operatives, employees, clerks, or other persons therein employed and the purity and wholesomeness of the foods therE:in produced."
Section 42-118 provides: "The Commissioner of Agriculture and State Chemist are hereby authorized and directed to make and cause to be publishE:d such sanitary rules and regulations as are necessary in food inspection and to carry out the provisions of this and the preceding section."
Section 42-9906 provides: "Any person or persons or associations violating the provisions of Sections 42-117 and 42-118 in regard to sanitary regulations for places used for the preparation for sale, manufacture, packing, storage, salE: or distribution of food, or any person or persons or associations violating any of the rules and regulations made or published under the provisions of Section 42-118, shall upon conviction be fined in a sum not exceeding $100.00."
In addition to the above, the Commissioner of Agriculture is given the following authority as set forth in Section 42-403 of the Code:
"The Commissioner of Agriculture at such time as he may deem proper shall cause to be inspected all places where dairy products are made, stored or served as food for pay, and all places where cows are kept by persomi engaged in the sale of milk or cream, and may require the correction of all unsanitary practices found therein. . . . In the performance of thE:ir official duties the Commissioner of Agriculture or any duly accredited representative of his, acting for him, is hereby authorized and empowered to enter, during business hours, any slaughter house, meat market, dairy, creamery, butter and cheese factory, milk depot, or any other place or placE:s where meat and meat food products, milk and dairy products are sold or kept for sale, or any railroad cars, wagons, boats or other vehicles used in the transporting of such products." (Emphasis supplied)
The above statutes clearly place the responsibility of inspection in relation to food and food products including milk and dairy products, upon the Commissioner of AgriculturE:. The Commissioner is given direct supervision over all places where foods are sold, prepared, stored or offered for sale. This

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necessarily means that the Commissioner of Agriculture is re<'J.uired by law to keep a proper supervision over all such eating places as referred to in your letter. The State Board of Health may likewise exercise a gf:neral supervision over such eating places by virtue of the general authority contained in Section 88-112, supra. However, it should be pointed out that while the State Board of Health has general supervision over food and food products since the same relates to the htalth of the people, the Department of Agriculture is given direct and positive authority over the sanitation relating to food and food products.
In conclusion, I am of the opinion that both the Department of Agriculture and the State Board of Health have been given joint authority by the Legislature over sanitation matters in relation to eating places, the Department of Agriculture having been given specific and positive authority as set forth above, while the State- Board of Health is given general supervision over the same.
I am of the further opinion that the authority of the Department of Agriculture does not extend beyond food and food products, but that the State Board of Health, is given exclusive authority over sanitary matters relating to places where food and food products are not sold, prepared or otherwise handled. In other words, the State Board of Health has exclusive authority over sle-eping places, including rest rooms, tourist cabins, and general sanitary facilities for the public where foods or food products are not involved.
Where the Legislature has imposed certain duties and responsibilities upon a particular department of the State government, it is my opinion that such duties could not be transferred by executive ordtr to another department of State. In order to conserve funds and eliminate unnecessary duplication of effort, it seems that the two department heads involved in this discussion might work out some agreeable arrangement for the supervision of sanitary matters in relation to food and food products. However, I am not sugge-sting that either of these departments by agreement or otherwise attempt to circumvent the duties and responsibilities which the Legislature has imposed upon them. My suggestion is simply to the effect that an agreement may be arrived at whereby the routine of inspection or duplication of effort and f:xpenditure of funds might be reduced to a minimum.
FORESTRY AND GEOLOGY-Forestry When property is conveyed to the State subject to the provisiOns of the Act of 1925, p. 199, for use as a State Forest, it may not be used or leased by the State for any other purpose.
May 9, 1946 Hon. J. M. Tinker, Director, Department of Forestry
Your letter of April 15 received. You request that I advise how the Gwinn Nixon State Forest property in Richmond County can be made available to the 4-H Club in Richmond County for their use in their club work.
The copy of deed from Eliza H. S. Nixon to the State of Georgia which was enclosed with your letter provides as follows:
"Party of the first part ... in association with the upbuilding of Georgia's rural prosperity has given, granted, released, conveyed and confirmed, and by these presents does give, grant, release, convf:y and confirm unto the State of

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Georgia to be held and administered by the Commission of Forestry and Geological Development, as a State Forest and to be so used as to demonstrate the~ practical utility of timber culture, the following described property: ... "
After describing the property the habendum clause provides: "Said parcel of land ... to be held and administered by the Commission of Forestry and GE:ological Development, or its successors, for the purpose authorized by Section 5 of the Act of 1925 (Acts 1925, Page 199), of the General Assembly of the State of Georgia, it being the express desire and intention of the party of the first part to convey the land herein described strictly in compliance with the provisions of Section 5 of said Act'of 1925, and limited to the use and purpose therein stated." Section 5 of thE: 1925 Act provides as follows: "Be it further E:nacted by the authority aforesaid, That the Governor is authorized upon the recommendation of said Board, to acquire forest land by purchase approved by an Act of the Legislature, and to accept gifts of land to the State, the same to be held and administered by the State Board of Forestry as State Forests, and to be used as to demonstrate the practical utility of timber culture. Such gifts must be absolute, except the mineral and mining rights over and under said lands, (but no reservation of any timber in connection therewith) may be reserved, and except for a stipulation that they be held and administered as State Forests; and the Attorney General is hereby directed to see that all deeds of gift, or other grants to the State, of land mentioned above, are properly executed and convey good title before the gift is accepted." Section 43-123 of the Pocket Part of the Annotated Code provides as follows: "Management of lands; disposal of products.-When lands are acquired or leasea under the provision of this Chapter, the Director, with the approval of the Commissioner, is authorized to make expenditures of funds not otherwise obligated to the management, development, and utilization of such areas, to sell and otherwise dispose of the products from such lands, and all funds so derived shall be used by the Director in the acquisition, management, development, and maintenance of such lands, until all obligations have been paid in full."
Under this Section, the Commissioner is authorized to dispose of the products arising from lands acquired by the Department of Forestry. Section 43-124 of the Pocket Part of the Annotated Code provides that the Director of Forestry, with the approval of the Commissioner, is authorized to make rules and regulations governing the use, occupancy and protection of land under its control. This section also provides, in part, as follows:
"The Director, with approval of the Commissioner, shall have full power and authority to exchange, sell, or lease lands under its jurisdiction when in their judgment it is advantageous to the State to do so in the highest orderly development and management of State forests: Provided, howE:ver, that said lease, sale or exchange shall not be contrary to the terms of any contract which they have entered into."
The acceptance of the deed from Mrs. Nixon amounts to a contract by the State with her, to use the property for the purpose outlined in the deed, as provided for in Section 5 of the Act of 1925.
You state in your letter that a bill was introduced in the General Assembly to give the Department power and authority to release this land to the 4-H

32G
Club of Richmond County, that the bill passed the House, but failed in the Senate. The General Assembly is the only legislative power which can grant to officers authority to act for the State. Since the bill failed to pass both houses of the General Assembly, it is to be presumed that the General Assembly considered that the grant of authority to lease the property to the 4-H Club of Richmond County would be in conflict with the deed and the State's contract to use the property for a State Forest, as prescribed in Section 5 of the Act of 1925.
Under the Act of 1943 (Ga. L. 1943, pp. 100-184), a State Division of Conservation was created in lieu of a Department of Natural Resources; and all of the powers of the Department of Natural Resources was transferred and conferred upon the Governor, as Ex-Officio Commissioner of Conservation. The title to all property of the State was transferred to the StatE: Division of Conservation. Any contract entered into with reference to any property of the Forestry Department would have to be made by the Governor, as Ex-Officio Commissioner of the State Division of Conservation.
Since the deE:d which the State accepted restricts the use of the property to that of a State Forest, and the General Assembly has refused to grant specific authority for the disposition of the property, I am of the opinion that the property must be used as a State Forest in the manner defined by the Act of 1925. You give no idea of the intended use to which the 4-H Club is to make of the property, should a contract be entered into permitting the use of the same by the 4-H Club. UndE:r this statement of facts, I cannot outline stipulations or conditions under which the property may be made available to the 4-H Club. The property could not be leased to the Club for any purpose, or any use, which would be in conflict with the use as defined by the Act of 1925 and as limited by the deed which was accepted by the State.
FORESTRY AND GEOLOGY-Forestry The State does not require a license to practice tree surgery.
July 1, 1946 Hon. J. M. Tinker, Director Department of Forestry,
I have yours of June 29, making inquiry as to whether or not there are any laws on the books requiring one to be licensed to practice tree surgery.
I am unable to find any law which requires one to hold a State license in order to do this.
FORESTRY AND GEOLOGY-Forestry A lease of land by the State Department of Forestry should be signed by the Director of Forestry and the Commissioner of Natural Resources.
September 24, 1946 Hon. J. M. Tinker, Director Department of Forestry
You submitted for our consideration and advice a lease contract entered into between Otis D. Blake and the State Department of Forestry, leasing a tract of land to be used for the erection of a fire tower.

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The contract was signed by W. L. Crisp, Assistant District Forester, on behalf of the State Department of Forestry. Under Sections 43-117 and 43-118 of the 1945 Cumulative Pocket Part of the Annotated Code the Division of Forestry is under the control and management of a Director and the Commissioner of Natural Resources, and the Division of Forestry has the right to acquire, in the name of the State, by purchase, lease, agreem~::nt, or condemnation, such land within the State as may be deemed necessary and proper for carrying on the work assigned to the Department of Forestry.
I find the lease contract to be in correct legal forl]l with the exception that the same should hav~:: been signed by the Director of Forestry and the Commissioner of Natural Resources acting for the Department. To cure this defect I have prepared and enclose herewith a ratification of the act of Mr. Crisp in signing for the Department of Forestry.

FORESTRY AND GEOLOGY-Forestry; Railroads (1) Railroads are not required by State law to equip their engines with spark arrestors or screens. (2) The Department of Forestry may not enforce the requirement of State law that steam locomotivE:s be equipped with automatic doors on fireboxes.

Ron. J. M. Tinker

April 9, 1946

Director, Department of Forestry

Your letter of April 6th received. You request that I advise concerning

laws requiring railroads to equip their engines with spark arrestors or screens,

and the use of automatic doors on fire boxes, and your authority to enforce such law.

I do not find any statute which requires railroad companies to ('quip their engines with spark arrestors or scre~::ns. Section 94-701 of the Code provides

that railroad companies shall be held liable for any damage done to any prop-

erty by the running of trains, locomotives, or cars upon their respective roads.

Under this Section, in civil suits, it would be a jury question of whether or not a railroad company was negligent in operating its locomotives or engines with-

out spark arrestors or screens, where such company was sued for damages occasioned by fir~::.

Such a company is bound to exercise only ordinary care to prevent in-

juring property by fires, and the company must use ordinary care in equipping

engines with proper appliances and keeping them in proper condition so as to

prevent injury and damage to others. There is no criminal liability for failure

to equip engines with spark arrestors and screens, and consequently there is no law that forest fire wardens could enforc~:: in that respect.

Section 66-409 of the Code of 1933 requires railroad companies to equip

each steam locomotive with an automatic door to the firebox of such locomotive

engine. This requirement does not apply to locomotive engines weighing less

than 125,000 pounds on the driver, nor having less than 21-inch cylinder, nor

to logging or tram roads, nor mechanically fired engines, nor locomotive en-

gines engaged in interstate commerce. This section of the Code is codified un-

:ier Master and Servant. It is a provision for the protection of the servant,

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rather than protection against fire. In my opm10n the Forestry Department would have no authority for the enforcement of such a provision.
FORESTRY AND GEOLOGY-State Parks The Stat& may not expend appropriations for the improvement of a park owned by the United States which the State has only a license to use for limited purposes.
September 15, 1945 Hon. Ellis Arnall Governor of Georgia
Your letter of September lOth received. You enclose a letter from Hon. Ward Harrison, Director, Departments of State Parks, in which Mr. Harrison outlines proposed improvements for Ft. Yargo Memorial Park, located near Winder, Georgia. The proposed improvements call for the expenditure of $380,820.00, of which $155,100.00 is for immediate expenditure. Mr. Harrison called att&ntion to the fact that the State does not own the property. The property is owned by the United States Government and the State is in possession of same under a license agreement entered into by the Department of Agriculture on behalf of the United States and Hon. Zack D. Cravey, Commissioner of Natural Resources on behalf of th& State. You request that I advise whether or not in my opinion it is legal for the State of Georgia to make the expenditures for improvements on this property since the State does not have title to the property.
By virtue of an Act of the General Assembly passed in 1943 (Ga. L. 1943, pp. 180-183) S&ctions 43-104a and 43-107a, Cumulative Pocket Part of the Code of 1933, there was created a division of the Department of Natural Resources known as division of State Parks, Historic Sites, and Monuments under the Act creating the State Division of Conservation, and the powers, right and duties formerly exercised by the Director of the Division of State Parks, Historic Sites and Monuments created under the Act of 1937 were transferred to the new division. The Division of Parks under the Act of 1937 (Code Section 43-138, Cumulative Pocket Part of the Code) is authorized:
"To acquire in the name of the State, by purchase, lease, agreement, or condemnation, such land within the State as it may deem necessary or proper
to the extension of th& State park system. * * *"
Paragraph (f) of said Section of the Code provides: "To contract and make cooperative agreements with the United States Government, political subdivisions of the State, corporations, associations or individuals, with proper bond where deemed advisable, to protect, restore, preserve, mark, maintain or operate any historic, archaeologic or scientific site, ground, reservation, structure, building, object or other property for public use: Provided, that no contract or cooperative agreement shall be made or entered into unless or until the G&neral Assembly has appropriated money therefor or funds have otherwise become available for said purposes." Under Section 43-137 of the Code all parks and recreational areas heretofore or hereafter acquired by the State shall constitute the State park system and is under the control and management of the Division of Parks. It will be noted in paragraph (b) and paragraph (f) of S&ction 43-138 of the Code that the Division is not authorized to expend any money for the acquiring of prop-

329
erty unless or until the General Assembly has appropriated money therefor or funds have other become available for such purpose, and that no contract or cooperative agreement shall be made or entered into unless or until the General Assembly has appropriated money therefor or funds have otherwise become available for said purpose. The Act authorized the Division to accept gifts or contributions from individuals or other political divisions of the State.
I called on Mr. Harrison to make available the contract existing between the Stat<o and the United States and I find that the contract provides that the State has the right to develop and use the property know!]. as Ft. Yargo Memorial Park for the following purposes:
"(a) Wildlife: Wildlife management practices will be of such character as to maintain the lands in a productive condition from the standpoint of wildlife, and the lands will be managed to effectuate a balanced wildlife population.
"(b) Recreation: Recreational facilities and park areas shall be managed for the use and benefit of the general public and any fee charged for such public use shall be nondiscriminatory and consistent with the public non-profit character of the area.
" (c) Other: Any other use or any management practice shall be consistent with the foregoing purposes and with recogniz6d technical procedures and shall provide for retaining the land in a permanent cover of trees, shrubs, grass or other desirable perennial vegetation."
I gather from the terms of the contract that the real purpose is to develop a wildlife range, reforestation and soil conservation. Section (b) of the contract quoted above authorizes the use of recreational facilities by the State. The State has a lease or license for a term of fifty years to be automatically renewed for three successive terms of fifteen years unless written notice to the contrary is given by either party.
Paragraphs (b) and (f) of Section 43-138 of the Code seems to authorize the State to develop parks on leased lands. However, considering the contract that now exists between the State and the United States I do not think that the State. could legally make the expenditures outlined in Mr. Harrison's letter. I think that the lease contract should be more specific regarding the purposes for which the lands could be improved and used. I gather from the 1937 Act that it is the intention of the General Assembly that the Division of State Parks is restricted in the expenditure of money to acquire property for State Parks and to develop the same until the General Assembly has made proper appropriation of money to be used for such specific purposes. The General Appropriation Act makes available to the Division of Parks $35,000.00 in the following language:
"For the cost of operating the Division of Parks, Provided, that all park concessions be operated on a lease basis $35,000.00."
It does not appear from this appropriation that the General Assembly intends to make available money for the improvement of park lands owned by the United States Government. From this appropriation it is apparent that there has not been appropriated a sufficient amount to undertake the improvements called for at Fort Yargo Memorial Park. The additional appropriations authorized by Section 33 of the General Appropriation Act (Ga. L. 1943, pp. 84-96) from the income equalization account is made available because of Section 8 of the Act establishing the Budget Bureau (Ga. L. Ex. Sess. 1931, pp. 94-98; Section 40-408 of the Code of 1933) contemplates the additional

330
appropriations may be made by the Budget Commission to insure the payment of the expenses of operating the different divisions of the State, and does not in my opinion contemplate the setting aside of appropriations for improvements such as is proposed to be expended at Ft. Yargo.
Therefore, in consideration of the above stated facts, I am of the opinion that the State can not without further legislative authority and proper appropriation of money by the General Assembly proceed to develop property to which the State does not have title.
FORESTRY AND GEOLOGY-State Parks A state park may be leased to a private individual only if the Governor determines that it has become unserviceable to the State.
January 18, 1946 Hon. Ellis Arnall Governor of Georgia
I am pleased to acknowledge your letter of recent date, in which you state that a certain real estate dealer desires to lease Sitton's Gulch State Park from the State Park Department for a period of twenty-five years, and to develop this project as a private, commercial and recreational undertaking. You desire my official opinion "as to whether or not this property can be so leased, assuming the terms of the lease are such that the State will have a reasonable income from the propE:rty."
While the laws creating the Department of Natural Resources and the Division of State Parks (Chapter 43-1 of the Amended Code, Cumulative Pocket Part Supplement) do not contain express statutory authority for leasing such parks, Section 43-110 does provide that the Commissioner "shall make investigations of the natural mining industry and commercial resources of the State and take such measures as he may deem best suited to promote the conservation and development of such resources."
The Governor as Commissioner of Natural Resources is authorized to use his discretion in promoting the commercial resources of the State.
Section 91-804 of the Code provides: "When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the treasury." "Section 91-805. The 'proper authority' referred to in this Chapter is the Governor, for all officers of the State; and the county commissioners or other officers having charge of county matters, for all officers of the county." In the case of Trapnell v. Candler County et al. 146 Ga. 617, our Supreme Court held: " (2) When any public property shall be unserviceable, it may be sold or otherwise disposed of by order of the proper authority.... Public property becomes unserviceable in the purview of this law, so as to empower the proper authority to sell the same, where such property can not be beneficially or advantageously used under all the circumstances." While there is no special statutory authority authorizing State parks to be leased to private individuals, there is authority for the Governor to sell or otherwise dispose of public property which is unserviceable to the State. In

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your letter you do not state any facts which would indicate whether or not the property in question has become unserviceable to the StatE:. Should it be determined under all the circumstances that the property in question cannot be beneficial or advantageously used by the State, then you would be empowerE:d to sell, lease or otherwise dispose of such property to the best interest of the State.
If the property in question is not unserviceable to the State, I am of the opinion that it would be necessary to have specific statutory authority in order to enter into a long term lease for twenty-five years as stated in your letter.
FORESTRY AND GEOLOGY-State Parks The State, acting through the State Division of Conservation, may contract with a county for the development and operation of a state park, provided funds have been appropriated therefor.
March 11, 1946 Ron. Ellis Arnall Gov10rnor of Georgia
Ron. Ward Harrison, Director of Department of State Parks, handed me a file, including a proposed contract between the State of Georgia, acting through the State Division of Conservation, and Glynn County relating to the development and operation of a State Park on St. Simons Island. Mr. Harrison stated that you desired an official opinion as to the legality of the contract proposed, and as to the authority of the State to enter into same.
The file shows that on March 1, 1945, my predecessor, Judge T. Grady H10ad, rendered an official opinion for Mr. Harrison in which he concluded that under the statutes then in existence the statutory authority. was insufficient to authorize the contract proposed in the resolution under consideration. The proposed contract as submitted contains the same provisions as were proposed in the resolution.
Judge Head also concluded that in view of the strict construction of powers given to counties and county officials it was his opinion that the proposed contract could not be legally Eontered into without more specific statutory authority and until State funds are made available by appropriation by the General Assembly.
It is my policy to adhere to all official opinions herE:tofore rendered by former Attorneys General unless it is clear to my mind that the opinion is erroneous, or that there have been material changes made in the law invo!ved.
From a consideration of the opinion, the statutes in existence at the time of the opinion, and the authorities cited by Judge H10ad it is not clear to my mind that the opinion was erroneous. I would, therefore, adhere to the opinion if all of the statutes and constitutional provisions are the same now as at the time of the opinion.
I did not find that the Act creating the board of commissioners of roads and revenues of Glynn County has been changed. Since the opinion was written the people of the State have adopted a new Constitution and that Constitution has been proclaimed by you, as Governor, as being of full force and effect as the revised Constitution of 1945. The Supreme Court has recently in the case of Wheeler v. Fargo Consolidated School District, et al., 200 Ga.

832
323, upheld the Constitution of 1945 as being legally adopted and as now of full force and effect in the State. The Constitution of 1945 made some changes which to my mind affects the question under consideration.
Paragraph 2, Section 6 of Article 7 of the Constitution of 1877 (Code Section 2-5462) did not give the General Assembly the right to delegate to any county thE! power to levy a tax to acquire, improve, and maintain airports, public parks, and public libraries. Subparagraph 14 of Paragraph 1, Section 4 of Article 7 of the Constitution of 1945 provides as follows:
"To acquire, improve and maintain airports, public parks, and public libraries."
Section 92-3701 of the Code of 1933, as amended, codifying the different enabling acts which give counties power to levy taxes was amended by the General Assembly in the fifteen day session held in 1946. Act No. 635, approved January 20, 1946, provides that county taxes may be levied and collected for the following purposes, naming seventeen, among which are the following:
"To acquire, improve and maintain airports, public parks, and public libraries."
Clearly under the Constitution and the Act of the General Assembly counties are now authorized to acquire, improve and maintain public parks. I do not conceive of any need for any future enabling acts to put the Constitutional provisions into effect. Counties are given jurisdiction to perform this public service. Where counties are given jurisdiction to do certain things, the power to contract in regard to that subject-matter is to be implied. See Wright v. Floyd County, 1 Ga. App. 582 (1), as follows:
"Where, by statute, jurisdiction over a subject-matter is conferred upon county authorities, and therein the power to do certain things is expressed, the further power to contract in regard to that subject-matter is to be implied; and a part of this implicit power is the authority to use discretion as to the details of such contracts, subject only to the limitations imposed by the statutes or public policy of the State."
Under Subparagraph f of Section 43-138, Pocket Part Annotated Code, as pointed out by Judge Head in his opinion, the State and its political subdivisions arC' empowered to maintain or operate grounds, reservations, structures, buildings, or other property for public use. The only restriction against the State entering into a contract therefor is that the State can not contract to acquire hinds for such purposes, to develop the project, or to maintain and operate them until the General Assembly has appropriated money therefor or funds have otherwise become available for said purposes.
Another provision of the Constitution of 1945 seems to be in point. The operation of a public State park, or recreational ground, constitutes public servicE~. Both the State and counties are authorized to undertake that kind of public service for the people. Paragraph (a) of Paragraph 1, Section 6 of Article 7 of the Constitution of 1945 provides as follows:
"The State, state institutions, any city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use of such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county public agency, public corporation or authority, provided such contracts

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shall deal with such activities and transactions as such subdivisions are by law authorized to undertake."
It is, therefore, by opinion that the State of Georgia, acting through the State Division of Conservation can enter into a contract with the County of Glynn for the purposes outlined in the proposed contract.
I can not, at this time, approve the contract as submitted. The contract as submitted provides that the City of Brunswick and the County of Glynn shall secure fee simple title to a tract of land known as the Massengale Tract, that the title thereto shall be made to the State of Georgia, and that the State of Georgia agrees to acquire the remainder of the property necessary to complete the park outlined by a sketch, which is not attached to the proposed contract. I think that the contract should specifically describe the property that the City and County is to purchase and that the property to be purchased by the State should also be definitely described. The contract provides that the State shall promptly proceed to develop according to a report by Gilmore D. Clarke and others, but does not give any specific description of what the State is undertaking to do. All of the details of what the State is to do and what the County is to do should be determined by the parties and made a part of the contract. This suggestion applies to the provisions of Paragraph 3 of the proposed contract as to other indefinite undertakings.
I am of the opinion that Paragraph 4 of the proposed contract should be rewritten so as to provide that the State should not be liable for any of the operation expenses after the same is taken over by the County for operation. I think that the contract between the County and State should state a definite period of time, for which the County is to operate the State park and that the plan of operation should be undu the supervision of the State authorities, rather than some other professional consultant, who is not connected with the State.
With these suggestions, when incorporated into the contract, if the General Assembly has appropriated money for purchasing the land and developing the park, or if funds are otherwise available, I see no legal objection to the State entering into the contract.

FORESTRY AND GEOLOGY-State Parks Conveyance of land for roadside parks should be to the Department of State Parks, Historic Sites, and Monume;nts instead of to the State Highway Department.

Hon. J. C. Beasley

July 7, 1947

Director, State Highway Department

I am returning herewith the letter from Mrs. Aubrey Matthews, President

of the Garden Club of Georgia, together with the proposed form of deed conveying lands for road side parks to the State Highway Department of Georgia.

It is my opinion that the State Highway Department of Georgia is not

the proper Department to receive any lands for use as road side parks and

should decline to do so. Code Section 43-138, subparagraph (c), authorizes the Department of
State Parks, Historic Sites, and Monuments, to accept in its discretion, in fee

<>r otherwise, land intrusted, donated, or devised by any person, firm or asso-

334
ciation or corporation, to become a part of the State Parks system. Subparagraph (i) authorizes the Department of State Parks to coope:rate with the State Highway Department in the establishment and maintenance of road side parks and develop them for the convenience and enjoyment of the travelling public.
Section 43-137 states that all parks, re:creational areas heretofore or hereafter acquired by the State shall constitute the State Parks system and shall be under the immediate control and management of the Department.
From the above it is my opinion that any land given to the State for use as a road side park should be given to the Departm~:ont of Parks, Historic Sites and Monuments. The Highway Department is only interested therein from the standpoint of assisting in the development of such areas by paving roads thereto and therein.

GAME AND FISH-Fines and Forfeitures Funds arising from fines and forfeitures for violations of the gamEo and fish laws should be divided between the officers of the trial court and the State Game and Fish Commission after all costs have been paid.

Ron. Charles N. Elliott, Director Game and Fish Commission

April 29, 1946

Your letter of April 23rd received. You nquest that I construe Section 45-127 of the Code of 1933 relating to the disposition of fines and forfeitures arising from the violation of game and fish laws.
Section 46-127 of the Code provides in part as follows:

"The proceeds from all fines and forfeitures arising from the violation of any game or fish law shall be divided equally between the: proper officers of the trial court and the Department of Game and Fish. Half of all money arising from such fines shall be remitted, by the clerk of the court in which said case is disposed of, to the Commissioner of Game and Fish, for credit to the game and fish protection fund. The othEor half shall be paid by said clerk to the proper officers of the trial court."

On June 8, 1936, Judge M. J. Yeomans, who was then Attorney General, rendered an opinion for Hon. Zack Cravey, then Commissioner of Game and Fish, in which opinion Judge Yeomans ruled as follows:
"This will acknowledge yours of the fifth instant requesting an opinion as to the proper construction of Section 11 of thEe Act approved March 28, 1935 (Georgia Laws 1935, pp. 386, 389) as follows:
" 'The proceeds from all fines and forfeitures arising from the violations of any game and fish law shall be divided equally between the proper officers of the trial court and the Department of Game and Fish.'
"I am of the opinion that the word 'procee:ds' as used in the above statute means 'net proceeds' after all court costs have been paid. Therefore, where a person is convicted and sentenced to pay a fine of $75.00, which includes the costs of court, the division of the proceeds between the proper officers of the trial court, and the Department of Game and Fish is not calculated and made until the deduction of court costs. On the other hand, if the sentence of the court imposes a fine of $75.00 and costs of court, the division between

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the officers of the trial court and the Department of Game and Fish is made upon the basis of $75.00, the Game and Fish Departme:nt being entitled to $37.50 and the proper officers of the trial court to $37.50.
"As stated above, where the court imposes only a fine and the sentence of the court is silent as to the costs, the officers of the trial court would have a lien upon the fine for the costs, and the 'proceeds' of the fine or forfeiture could not be divided and properly disbursed until the costs had been paid from the fine or forfeiture. As to the judicial interpretation of the word 'proceeds' see Culberson v. Alabama Construction Company, 127 Ga. 599, 604."
Opinions of the Attorney General, 1935-36, page 102. On September 20, 1940, you called upon Governor Arnall, who was then Attorney General, for an opinion construing the same provision of law. Governor Arnall adhered to and followed the opinion rendered by Judge Yeomans. See Opinions of the Attorney General, 1939-41, page 269. See also Opinions of Attorney General, 1939-1941, page 270, where Governor Arnall, while Attorney General, rendered an opinion to you dated July 24, 1939. Ron. W. H. Howell, Clerk of the Superior Court of Lanier County, Georgia, on July 14, 1945, called upon Judge T. Grady Head, who was then Attorney General, for an opinion as to the construction to be placed upon the provisions of Section 45-127, relating to the disposition of fines and forfeitures arising from the violation of game and fish laws. Judge Head adhered to and followed the opinion rendered by Judge Yeomans and approved by Governor Arnall, and ruled as follows: "I am, therefore, of the opinion that all funds derived from fines and forfeitures in fish and game cases should be divided betwee:n the officers of the trial court and the Department of Game and Fish after all costs have been paid, and I am of the further opinion that the ttrm 'proceeds' as used in the statute means net proceeds." The opinions of both Judge Yeomans and Governor Arnall were official. The opinion of Judge Head was unofficial due to the fact that it was rendered to a Clerk of the Court and not to an official he:ad of a Department of the State.
I adhere to the opinion rendered by Judge Yeomans, adhered to by Governor Arnall and Judge Head and hold that funds derived from fines and forfeitures in fish and game cases should be divided between the officers of the trial court and the Department of Game and Fish afte:r all costs have been paid. In other words, if the fine imposed by the court is for a certain sum and costs then the fine would be divided one-half to the offictrs of the court and one-half to the Department of Game and Fish. On the other hand, if the fine was merely for a sum stated the:n all costs would first be paid to the officers of the trial court and then the proceeds would be divided one-half to the officers of the trial court and one-half to the State Department of Game and Fish. The manner in which the sentence was imposed would be controlling as to the division to be made.

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GAME AND FISH-Fishing (Unofficial) (1) The General Assembly may provide for the summary seizure and condemnation of fishing gear of small value used in illegal fishing. (2) The General Assembly may not provide for the summary trial by the Commissioner of Coastal Fisheries of a violation of a penal statute.
November 20, 1946
Hon. Charles L. Gowen Attorney at Law Brunswick, Georgia
This will re;ply to your letter dated November 15th, in which you ask two questions regarding the validity of proposed legislation with respect to violations of the State fishing laws. You understand of course, that it is difficult to predict with any degree of certainty whether proposed legislation will be valid under the Constitution of this State, or of the United States in the absence of knowing exactly what the provisions of that legislation will be. However, I am pleased to give you my ideas about the que;stions raised in your letter.
Your first inquiry is whether legislation providing for the summary seizure and condemnation of nets and fishing gear used in illegal fishing would be constitutional.
The courts of this State and of the United States have upheld, against constitutional objections, the summary seizure and condemnation of ce;rtain articles used in violating the law and of articles which it was illegal to possess. However, as pointed out by the courts in those cases, there are limits to the rule. In Price v. Hamilton, 146 Ga. 705, it was held that Section 603 of the Penal Code then in effect which declared that any person who shall place in the waters of any river or creek a trap for catching fish, unless the main channel of such stream is left open for a space of 10 feet for rivers, and onethird of the channel for creeks, at low water mark, and unobstructed for the free passage of fish up and down such streams, shall be guilty of a misdemeanor, and that the sheriff of the county, upon complaint of persons in the territory of such obstruction shall have authority to break and open such obstruction that may be placed in such waters in violation of the Code Section, did not offend that clause of the Constitution which required the separation of the legislative, judicial, and executive powers of the government, or that which protects property against unlawful search and seizure, or that which declared that no person shall be deprived of life, liberty, or property except by due process of law. It will be observed that under the Code Section there construed, the sheriff had the authority to summarily break open the trap even though the trap might have been installed and used for a lawful purpose. The Court cited as authority for its holding the case of Lawton v. Steele, 152 U. S. 133. In that case, it appeared that the law of New York prohibited the killing or taking from certain waters of the State any fish of any kind by any device or means whatever, otherwise than by hook and line or rod held in hand. The Act further declared that any net, pound or other means or device for taking or capturing fish found in or upon any of the waters of the State in violation of the laws enacted for the protection of fish were a public nuisance, and might be abated and summarily destroyed by any person. The Supreme Court of the; United States sustained the constitutionality of the Act. Although

337
:n that case it appeared that under the existing State law it perhaps would be difficult to use the nets, traps, etc. for a lawful purpose, the court seems to have found the basis for its decision upholding the provisions of the Act with respect to the summary condemnation and destruction of the property in the fact that the property was of little value, and it would belittle the dignity of the judiciary to require the destruction to be preceded by a solemn condemnation in a court of justice. The Court said:
"It is not easy to draw the line between cases where property illegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation. If the property were of great valu~, as, for instance, if it were a vessel e:mployed for smuggling or other illegal purposes it would be putting a dangerous power in the hands of a custom officer to permit him to sell or destroy it as a public nuisance, and the owner would have good reason to complain of such act as depriving him of his property without due process of law. But where the property is of trifling value, and its destruction is nece:ssary to effect the object of a certain statute, we tihnk it is within the power of the legislature to order its summary abatement. For instance, if the legislature should prohibit the killing of fish by explosive shells, and should order the cartridges so use:d to be destroyed, it would seem like belittling the dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a court of justice. The same remark might be made of cards, chips, and dice of a gambling room.
"The value of the nets in question was but $15 apiece. The cost of condemning one, (and the use of one is as illegal as the use of a dozE:n) by judicial proceedings, would largely exceed the value of the net, and doubtless the state would, in many cases, be deterred from executing the law by the expense. They would only be removed from the water with difficulty, and were liable to injury in the process of removal. The object of the law is undoubtedly a beneficent one, and the state ought not to be hampered in its enforcement by the application of constitutional provisions which are intended for the protection of substantial rights of property. It is evident that the efficacy of this statute would be VE:ry seriously impaired by requiring every net illegally used to be carefully taken from the water, carried before a court or magistrate, notice of the seizure to be given by publication, and regular judicial proceedings to be instituted for its condemnation."
The Lawton case has been cited and quoted with approval in subsequent decisions by the appellate courts of this State. In addition to Price v. Hamilton, supra, see Delaney v. Plunkett, 146 Ga. 547; Creaser v. Durant, 197 Ga. 531. Although the Court in the Creaser case found the facts there presented stronger than those in the Lawton case, it did not disapprove the proposition that summary condemnation might lie where the amounts involved are small and the cost of a condemnation proceeding would generally largely exhaust the value of the property destroyed and thus impair the free exerchw of needful police powers. The Court further points out in the Creaser case that a stronger case for summary condemnation may be made if the statute does not !Jrohibit a suit by any injured party on account of a tort committed under color of the statute as it is the genE:ral rule that if a person has been injured and has su:l'fered damage by any wrongful act committed by an officer under color of his office, he can sue such officer personally or upon his official bond and recover the amount of the damage.

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It appears from the foregoing that it may be possible to pass legislation providing for the summary seizure and condemnation of nets and fishing gear used in illegal fishing which would not be subject to constitutional infirmitits.
You also inquire whether or not legislation authorizing the Commissioner of Coastal Fisheries to hear cases inyolving violations of fishing laws in a summary fashion would be constitutional.
I am unable to give you an exact answer to this question, as I am uncertain of the nature of the penalty to which you have reference. However, as your first question deals with the summary condemnation of the nets and gear used in illegal fishing, I presume you have reference to criminal penalties for a violation of the statute. I do not believe that the Commissioner of Coastal Fisheries could be given authority to hear cases involving violations of penal laws in a summary fashion. Article 6, Section 16, Paragraph I of the 1945 Constitution provides:
"The right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolate, but the Gentral Assembly may prescribe any number; not less than five, to constitute a trial, or traverse jury, except in the superior court."
As stated in Flint River Steamboat Company v. Foster, 5 Ga. 194, 206, "In criminal proceedings, trial by jury cannot be too highly appreciated or guarded with too much vigilance. So long as this palladium and Habeas Corpus, remain unimpaired, life and liberty are safe from passion, preiudict, or oppression, no matter from what quarter they emanate."
Although the Constitutional right to a trial by jury need not be granted to a person accused of violating a municipal ordinance (Little v. The State, 123 Ga. 503) or may be made dependent upon a demand or other conditions (Wiggins v. The State, 17 Ga. App. 748) it appears to have betn consistently held that a person charged with violating an offense embraced in the criminal statutes of the State must be afforded that right. For that reason, I sincerely doubt if a law passed by the General Assembly containing a provision for the summary punishment of persons violating the law would be constitutional.
GAME AND FISH-Fishing (Unofficial) The General Assembly may authorize the State Game and Fish Commission to suspend or rtvoke a fishing license for violations of the law. Notice, hearing and opportunity of appeal should be provided.
December 18, 1946 Hon. Charles L. Gowen Attorney at Law Brunswick, Georgia
This will reply to your letter dated December 2nd, with respect to certain inquiries by Honorable Wayne D. Heydecker, Secretary-Treasurer of the Atlantic States Fisherits Commission, regarding the validity of proposed legislation.
You quote Mr. Heydecker as follows: "Query. Would it be possible to give the Department power to make regulations governing fishing, and to prescribe conditions affecting continuance of a license, the violation of which would not be a misdemeanor but would subject the violator to suspension or revocation

33!)
of license. Could not fishing without a license remain a misdemeanor with the right of trial by jury?"
In connection with the inquiry, I feel it necessary again to point out the difficulty of predicting with any degree of certainty whether proposed legislation will be valid under the constitution of this State or of the United States in the absence of knowing exactly what the provisions of that legislation will be. Thus, it is not stated whether it is proposed to afford the licentiate notice and an opportunity of hearing before the license is revoked and an appeal to the courts from the action revoking the license. However, I am pleased to give you the benefit of certain cases which have some bearing pn the subject matter of the inquiry.
Under the law as it now stands, the Commission may make necessary rules and regulations to carry into effect the game and fish laws of the State, which are not inconsistent with the established laws of the State. See
Code Section 45-106; 45-107; 45-109; 45-110; Section 13, 14 and 15, Ga.L. 1943, pages 128, 133; Ga.L. 1945, pages 404-410.
The question of whether this authority now vested in the Commission would authorize it to prescribe conditions affecting the continuance of a license, the violation of which would subject the violator to suspension or revocation of his license, appears never to have been decided by the Appellate Courts of this State. However, it is significant that the law specifically prescribes the penalty for violating the rules and regulations of the Commission. See Code Section 45-110; Section 20, Ga.L. 1943, pp. 128, 134, as amended.
The general rule appears to be that a license to fish, granted by the State, is in no sense a contract or propE:rty right and may be revoked by the sovereignty which granted it at its pleasure and without notice, and a person in accepting a fishing license takes it subject to the State's right to revoke. 36 C.J.S. 872.
In State v. Cote, (Me.) 120, Atl. 538 it was held that under a statute providing that a Director of Sea and Shore Fisheries, in his discretion, may suspend the license of any person whenever he has evidence that such person has violated any of the laws relating to lobsters, notice and hearing are not a condition precedent to suspension of a license to trap lobsters. This decision was based upon the theory that a license to set traps for lobsters did not grant the licentiate a vested right and accordingly could be revoked at the pleasure of the State. The court cited as supporting its view the case of Sprayberry v. Atlanca, 87 Ga. 120. In the same general connection see State v. Pulsifer (Me.) 152, Atl. 711; Bayside Fish Flour Company v. Zellerbach (Calif.) 12
Pac. (2nd) 961; Olson v. State Conservation Commission, 293 N. ,V. 262.
However, even though vested with the power to suspend or revoke a license, the State Agency cannot act arbitrarily or capriciously. Woodberry v. Municipal Council of Gloucester (Mass.) 61 N. E. (2nd) 647.
The Sprayberry case which was cited in the Cote case involved a municipal ordinance which provided that the conviction for certain offenses ~:hould work an immediate revocation of the license granted by the municipality to sell liquor. The court sustained the ordinance on the theory that the granting 0f a license to sell liquor is the exercise of police power, such license is not a contract but only a permission to enjoy the privilegE.; on the terms stated for a specified time, unless it be sooner abrogated, and by this revocation the citizen is not deprived of his property without due process of law. Of course, it can-

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not be predicted whether the appellate courts of this State will apply the rule of the Sprayberry case, which involved a subject that is generally considtred as being harmful per se, to the rights acquired from the State under a license to take fish from its waters. However, the right of the State to regulate fishing appears to be founded upon the basic principles which were relied on by the court in the SpraybE:rry case. As stated in 22 Am. Jur. 691 the right to regulate fish and fisheries may be based either on the police power of the State, to enact laws designed to increase the industries of the State, to develop its resources, or to add to its wealth, or on the circumstance that the fish in the water of the State belong to the peopl& in their sovereign capacity and are not the subject of private ownership, except in so far as the people may elect that they shall be.
"The State may prohibit the catching of fish within its waters; if it allows the catching it may regulate it by the imposition of such restrictions and regulations as it deems needful and proper."
As stated in Silver v. State, 147 Ga. 162, 168: "The fallacy of this argument is in assuming that the shrimp and prawn taken by the defendant from the waters of the State, in violation of its statutes, ar& the personal goods of the defendant. They would not become his personal property until lawfully acquired. Under the principle decided in the McCready case, supra, they belonged to the State of Georgia, which had the right to protect its own supply of shrimp and prawn, and to authorize the manner in which its own citizens may take them." In view of the foregoing cases, it may be that the Supreme Court of this State would hold that a person receiving a fishing license from the State acquires at the most a mere privilege and that a statute authorizing the Commission to revoke the license of a person violating rules and regulations of the Commission would not deprive that person of his property, without due process of law, even though notice, hearing and opportunity of appeal were not provided for by the statute. However, the question is by no means free from doubt. The statute would be less vulnerable to attack on constitutional grounds if it provided for notice, hearing, and an opportunity of appeal. I notice in the quotation contained in your letter from Mr. Heydecker, he refers to the summary seizure of inexpensive "boats and gear." The seizure of inE:xpensive nets and fishing gear is dealt with in my letter dated November 20th. However, I believe the case would be very rare where a boat used in fishing was of so little value that it could be summarily seized and destroyed without condemnation proceedings.

GAME AND FISH-Fishing (l) A municipality may not regulate the taking of fish from public waters

unless the State delegates it that authority. (2) The use of power drawn nets in the outside salt waters adjacent to Tybee Island is not prohibited.

Hon. Charles N. Elliott, DirE:ctor State Game and Fish Commission

July 17, 1947

I have your letter of July 14, in which you state that certain residents of

Tybee Island claim that it is a violation of law for fishermen to use power drawn nets in trawling for prawn and shrimp on the waters within a three mile limit of the municipality.

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I find no Georgia law which prohibits parties from using power drawn nets on the waters along a beach within the three mile limit of a municipality.
Code Section 45-512 is as follows: "45-512. Use of nets in inside salt waters; boundaries of sounds. "Outside salt waters;" "inside salt waters."-The use of all nets except hand-drawn nets in the inside salt water rivers, creeks and estuaries, is hereby prohibited. The use of nets except hand-drawn nets is prohibited in the sounds of this State during the months of March, April, May, June, and July of each year. The boundaries of the sounds are as shown in Bulletin 19 of the United States Geodetic Survey. Outside salt waters are defined as those waters from the outermost part of the coast line to the limit of the three-mile jurisdiction, and embrace that part of the Atlantic Ocean under the jurisdiction of this State. Inland salt waters not included in outside salt waters include all sounds, estuaries, saltwater rivers and creeks. Any person violating any of the provisions of this section shall be: guilty of a misdemeanor." In 22 Am. Jur. 696, it is, stated: "Fish in the waters within the boundaries of the state belong to the people of the state and not to the residents of a particular municipality of the state; and unless the state delegates power to a municipality re:lative to the taking of fish within its limits, the municipality can make no regulations which affect the rights of fishing in public waters ... but, although the state reserves full title to its fish, it may delegate the power of regulating their taking to inferior municipalities." By an Act of 1929, page 1380, the corporate limits of Savannah Beach, Tybee Island were changed so that the limits included the entire island of Tybee, but no mention is made of the limits extending into the waters adjacent to the island. Prior to August 15, 1916, the territorial extent of the State of Georgia on the east coast was the coast line, but in 1916, the limits were extended into the ocean, as shown by the following description embraced in the Act: "Thence along the middle of said river (St. Mary's) to the Atlantic Oce:an and extending therein three (3) english miles from the low water mark; etc." From the above quoted authorities, it would, therefore, appear that Tybee Island has not been delegated the authority by the state to regulate fishing within a three mile limit of its corporate limits; that the waters extending three miles out from the Beach line of the low water mark of Tybee Island is within the boundaries of the State of Georgia; that there is no general law which prohibits the use of power drawn nets within those limits. The general rule see:ms to be that no town or city would have a right to pass any ordinance affecting the taking of fish from these waters unless expressly so delegated by the General Assembly.

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GAME AND FISH-Fi~hing (1) Enforcement officers of the State GamE: and Fish Commission may board and search vessE:ls (a) when acting under a warrant, (b) when they have probable cause to believe a violation exists, or (c) in arresting an offender detected in the commission of a violation. (2) Enforcement officers may takE: boats into custody for the purpose of conveying arrested persons or illegal cargo found thereon ashore, but are individually liable for tortious acts.
October 10, 1947 Hon. Charles N. Elliott, Director State Game and Fish Commission
I have your letter of September lOth in which you request my opinion on the following three questions:
1. Does the Game and Fish Commission have authority undE:r the present laws to board boats suspected of illegal fishing in the creeks, rivers, and sounds off the coast of Georgia for the purpose of inspection?
2. Does the Game and Fish Commission have authority under the present laws to search the hold of boats engaged in, or suspected of engaging in, illegal fishing?
3. Does thE: Game and Fish Commission have the right under the present laws to seize or take over a boat engaged in illegal fishing and tow such boat to shore for the purpose of arresting the skipper or captain of the boat and either place him in jail or have him make bond? If the present laws give us this right, would responsibility for damage resulting from the towing of such boat to shore be placed on the Game and Fish Commission?
I will consider questions one and two together, as the lE:gal effect of boarding a boat and searching a boat are the same, although the amount of damages may be different.
The Constitution of the State of Georgia, Article 1, Section 1, Paragraph 16 (Code Section 2-116) provides as follows:
"Searches, seizures, and warrants.-The right of the people to be secure in their persons, houses, papers, and effects, against unrE:asonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath, or affirmation, particularly describing the place, or places, to be searched, and the persons or things to be seized."
This section has long been construed to prohibit unreasonable searches without propE:r warrant.
Code Section 45-108 provides in part as follows: " ... the Commissioner of Game and Fish ... shall with the State game protectors and Deputy State game protectors be authorized to serve all criminal processes for violations of this law which could be served by the sheriffs and constables."
The powers given under the above CodE: section are given to the present Commissioner by Code Section 45-148. Therefore, your officials have the authority to execute proper warrants directing the boarding and searching of vessels. Obviously, they will seldom be able to procure warrants for persons who they come upon while patroling and whom they suspect of violating laws and regulations.
VolumE: 47, Am. Jur. 513, Section 18 provides as follows:

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"Searches of Vehicles and other means of Transportation.-The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a necessary difference between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to sE:cure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. . . . The measure of the legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes contains contraband goods which are being il!E:gally transported. In cases where the securing of a warrant before seizure of property being transported on a highway is reasonably practicable, it must be secured, and when properly supported by affidavits and issued after judicial approval, it protects the seizing officer against a suit for damages. 'iVhE:re seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause."
Under this rule of law, your officers may board and search vessels without warrants when they have prol;mble cause for suspecting that violations are taking place. No concise definition of what probable cause is can be given. Each case must be separately determined on its facts.
See, Turner v. Camp, 123 F. 2d. 840. The United States Supreme Court has given about as clear a definition of probable cause as is to be found. In a case involving a search for illegal liquor, the Court stated in Carroll v. United States, 267 U. S. 132, 69 L.ed. 543.
"On reason and authority the true rules are that if thE: search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonable arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid."
Further, when your offictrs apprehend a fugitive or any person actually in the commission of a violation of the laws or regulations, they may, of course, arrest such person, and when they make such arrest they are authorized to make a search for evidence in connection with the discovered crime. See, 56 C. J. 1167, Sec. 30, which reads in part as follows:
" ... The constitutional guaranty under consideration has no application to, and does not prevent, arrests in accordance with the course of the common law, nor does it apply to the incidE:ntal right of officers to search the prisoner after a lawful arrest and to seize such property as is connected with the crime charged ..."
My opinion is, therefore, that your officers may board and search vessels within the proper jurisdictional limits in the following cases:
1. When they are acting under a proper warrant.
2. When they have probable cause to believe that a violation is being committE:d.
3. In conjunction with an arrest made of an offender detected in the commission of a violation.
Concerning your third question, it is my opinion, that since your officers have authority to make arrests and to seize illegal caches, they necessarily have

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the implied authority to take into custody boats on which the arrested persons are found, or in which the illegal caches lie.
This would be authorized for the sole purpose of conveying the arrEosted persons or the illegal cargo to shore.
As to the responsibility for damages resulting from towing boats, the various Acts providing for your enforcement officers require that they be bonded. It would seem that a boat owner should and could seek redress from those officers first of all. However, Code section 45-106, in stating the general powers and duties of the Commissioner of Game and Fish states:
"... He shall be responsible for the conduct of all officers and employees of his office . . ."
Our appellate courts have not as yet construed this sentence; it seems to me that there is a possibility that responsibility of tortious acts of officers might be placed on the Director under this sentence. There does not seem to be any likelihood that the Commission itself could be held responsible.
GAME AND FISH-Wild Life Rangers The State Game and Fish Commission may accept contributions from landowners of sums sufficient to defray the salary and expenses of a wild life ranger, and may assign a ranger to patrol the lands of such owners where necessary for the enforcement of the game laws.
March 27, 1946 Hon. Charles N. Elliott, Director State Game and Fish Commission
In your letter of February 25th you stated that landowners of a South Georgia county had requested that the Game and Fish Commission employ a full time Wildlife Ranger and assign him to patrol the lands of the owners to stop game law violations. You also state that the landowners have agreed to refund to the Game and Fish Commission all salary, travel and other expenses for the maintenance of this Ranger. The Ranger is to occupy the same status as other Rangers and is to be under the direction and control of the Game and Fish Commission. You request that I advise whether or not such a procedure would be legal.
'Section 45-143, Cumulative Pocket Part of the Annotated Code, provides as follows:
"The Director shall appoint and fix the salaries of such other assistants, protectors, and employees, including a uniformed division to be known as Wild Life Rangers, of such number as may be necessary to carry out the duties assigned to them by the Commission and Director, within funds available to and appropriated therefor, all of whom sliall serve at the pleasure of the Director. The Director shall not appoint any persons as assistants, protectors, employees, including Wild Life Rangers, related by blood or marriage in a degree closer than third cousins to the director or members of the Commission."
This Section of the Code is taken from the Acts of 1943. The Commission is authorized to use and fix the salaries of uniformed Wildlife Rangers of such number as may be necessary to carry out the duties assigned by the Commission and Director, within available funds.
Under the Act of 1931 as amended by the Act of 1935, Code Sections

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45-124 and 45-125, the Commission was authorized to appoint, in addition to the regular game protectors, thirty deputies or special deputies as game protectors. The special game protectors were to serve without compensation. The Commission had a right to pay such special deputies not more than three ($3.00) dollars per day plus actual expenses, when called upon to perform special duties under direction of the Commission,
I think that you have ample authority for appointing a. full time Wildlife Ranger and for assigning him to any specific territory which you deem necessary for the enforcement of the game laws.
I do not find any statute which specifically provides that the Commission has the authority to accept gifts from any private individuals to be used for the enforcement of the game laws. There is no statute, so far as I can find, which prohibits your Department from accepting such funds.
Section 45-144 of the Cumulative Pocket Part of the Annotated Code provides that all funds resulting from the operation of the Commission and from the 'administration of the laws relating to fish and game, together with all moneys collected or derived from licenses or special tax pertaining thereto, and any other special fund provided for such purpose shall constitute the game and fish fund and shall be used by the Commission for its operation and for carrying out the provisions of the law relating to the enforcement of the fish and game laws.
I think that this implies that the Game and Fish Commission may accept gifts and contributions from any source to be used as a part of the game and fish fund for the enforcement of the laws relating thereto. It is, therefore, my opinion that it would be legal for the Game and Fish Commission to accept and receive from the landowners sums sufficient for the salary, travel and other expenses of the full time Ranger assigned to patrol the lands of the owners.
Any funds so received should be transferred to the regular Game and Fish Commission fund and the salary and expenses of the Ranger should be entered in the budget, approved by the Budget Commission and paid to the Ranger in the same manner that other Rangers are paid.
It should be understood between your Department and the landowners that the Ranger appointed by you and assigned to patrol the lands is under the direction and control of the Game and Fish Commission, together with yourself as Director. The Ranger should understand that he is answerable to the Commission for all duties that he might perform, and that he must take orders from the Commission as other Rangers are required to do.
GENERAL ASSEMBLY-Election to Fill Vacancy (1) Where a senator-elect dies before taking office, the Governor may issue a proclamation and writ of election. (2) Whether the incumbent holds over when a senator-elect dies is to be determined by the Senate. January 6, 1947
Hon. Ellis Arnall Governor of Georgia
Your letter of January 2nd received. You refer to the fact that the Senatorelect from the First Senatorial District died before taking office and state that

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you have issued your proclamation and writ of election calling for the election of a Senator to represent the First District, and request that I advise whether or not you should have issued the proclamation, whether or not it is valid and legally binding, and whether or not a State Senator will hold over into a new legislature.
I refer you to an opinion that you rendered on December 11, 1940, while Attorney General, Opinions of the Attorney General, 1939-41, pp. 188-189. My private view of the law is in accord with the conclusions reached by you in the opmwn. So far as I have been able to determine the provisions of the Constitution and statutes relating to the matter are the same now as they were at that time with the exception of the Act approved FEobruary 1, 1946, (Ga. L. 1946, pp. 42-45), which Act rearranged the senatorial districts and provided in Section 2 as follows:
"The first county named in each of the above sections shall furnish the Senator for the next general election and after that the counties in the order named above shall furnish the Senator for that District."
In your opinion you did not deal with the provision contained in Paragraph 6, Section 1, Article 12 of the Constitution of 1945, and which was contained in Paragraph 7, Section 1, Article 12 of the Constitution of 1877, which provided in part as follows:
"The officers of the government now existing shall continue in the exercise of their several functions until their successors are duly elected or appointed and qualified."
Even considering this provision of the Constitution my private view is in accord with your opinion. Therefore, I am of the opinion that when you were furnished ample proof that the Senator-elect had died it was proper for you to issue your writ of election and proclamation and that such proclamation, even though made before the convening of the General Assembly, was legal and valid. By issuing the writ and proclamation, you certainly have, to the extent of your power~, offered Effingham County the right to select a Senator as provided for in the 1946 Act.
However, on the question of whether or not a State Senator can hold over I wish to call your attention to the provision of the 1943 Act relating to the Department of Law and especially to a part of Section 40-1614 of the 1945 Cumulative Pocket Part of the Code, which is as follows:
"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."
'BY virtue of this provision the Legislative branch of the State is not bound by opinions rendered by the Law Department. The Senate is the judge of the election returns and qualification of its members. The question of whether or not the Senate will allow a Senator to hold over under the provision of the Constitution citEod, where the Senator-elect died, is one of qualification to be determined by the Senate under Paragraph 1, Section 7, Article 3 of the Constitution, which provides in part as follows:
"Each House shall be the judge of the election, returns and qualification of
its members ****."
Because of this provision of the Constitution our courts have held that they do not have jurisdiction relating to controversies over the election and quali-

fication of members of the General Assembly. See McWilliams v. Neal, 130 Ga. 733, and Rainey v. Taylor 166 Ga. 476.

GENERAL ASSEMBLY-Extrordinary Session (Unofficial) A certificate by three-fifths of the members elected to each House without deducting for those who have become disqualified is necessary for the General Assembly to convene itself in extraordinary session.

Hon. Fred Hand Pelham, Georgia

September 26, 1947

I am pleased to acknowledge your letter of September 19th, in which you state that you have started a movement for an extraordinary session of the Georgia Legislature. You request that I advise you as follows:
"I wish to request that you give me an opinion on whether these resigned members can be subtracted from the total number in each House in computing the three-fifths necessary to issue a call."

Of course you understand that under the law I cannot give you an official opinion as Speaker of the House of Representatives, nor can I render a ruling which will be binding upon the legislative branch of our government. (See Code Section 40-1609). I am always glad however, to render any assistance that I can to the members of the Legislature with the understanding that any views expressed by me are purely personal and given only as a matter of information in the hope that same may be of some benefit to the inquirer. It is in the spirit of being helpful in supplying pertinent information that I undertake to answer your inquiry.
Your question resolves itself into the proposition of whether the Constitution requires three-fifths of the members elected to each House to put in motion the processes of law for an extra session, or whether only three-fifths of the present membership of each House is necessary for such an extraordinary session.
Article 3, Section 4, Paragraph 3 of the State Constitution provides in part as follows:
" .. Nothing herein shall be construed to affect the power of the Governor to convoke the General Assembly in extraordinary session, or the duty of the Governor to convene the General Assembly in extraordinary session upon the certificate of three-fifths of the members elected to the Senate and the House of Representatives, as provided in Article 5, Section 1, Paragraph 12 of this Constitution.. . ."
Article 5, Section 1, Paragraph 12 of the Constitution provides in part as

follows: "... Provided, however, that when three-fifths of the members elected to
the House of Representatives and three-fifths of the members elected to the Senate shall have certified to the Governor of the State of Georgia that in their opinion an emergency exists in the affairs of the State of Georgia, it shall thereupon be the duty of said Governor and mandatory upon him, within five days from the receipt of such certificate or certificates, to convene said General Assembly in extraordinary session for all purposes; and in the event said Gover-

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nor shall, within said time, Sundays excluded, fail or refuse to convene said General Assembly as aforesaid, then and in that event said General Assembly may convene itself in extraordinary session, . . ."
Both of the above provisions of the Constitution specifically provide for "three-fifths of the members elected" as a prerequisite for the convening of an extraordinary session of the Legislature. It would seem that this necessarily means three-fifths actually elected by the people to serve as members of the General Assembly, and persons who had resigned or were otherwise disqualified would not detract from the total number previously elected. In the case of the Senate, we have 54 Senators duly elected by the people. It would require threefifths of this number, or 33 Senators in order to comply with the above provisions of the Constitution for the calling of an extraordinary session of the Legislature. The fact that several of the elected members had subsequently become disqualified by reason of death, resignation or otherwise, would not mitigate against the Constitutional mandate which requires three-fifths of the members elected to each of the two Houses for the calling of an extraordinary session. The Same thing that applies to the Senate will likewise apply to the membership of the House of Representatives.
The above reasoning is consistent with the interpretation placed on similar language by the General Assembly in its construction of Paragraph 14 of Section 7 of Article 3. The provision of the Constitution provides:
"No bill shall become a law unless it shall receive a majority of the votes of all the members elected to each House of the General Assembly, and it shall, in every instance, so appear on the Journal."
You will note that the language of the above Constitutional porvision is the same as that used in Paragraph 12 of Section 1 of Article 5 relating to the call of an extraordinary session. Each of these Constitutional provisions require a certain percentage of the "members elected" in order to pass a bill or call an extraordinary session. The General Assembly has always held that no bill shall become a law unless it receives a majority of the votes of all members elected to each House of the General Assembly. This would mean that the Constitutional majority necessary for the passage of a bill in the Senate is 28, regardless of how many vacancies there might be in the membership. The disqualification of a Senator or representative does not in any way lower the Constitutional requirement that a majority of the members elected to each House shall favorably vote upon a bill in order that same may be passed. It seems that the construction placed upon this provision of the Constitution by the Legislature should apply with equal force to the Constitutional provision requiring three-fifths of the members elected to each House for the call of an extraordinary session. In my personal opinion, the two situations are analogous, and each requires a certain percentage of the membership elected to the respective branch of the Legislature in order to pass a bill or call an extraordinary session as the case may be.

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GENERAL ASSEMBLY-Veterans Education Council No member of the General Assembly at the time the Act creating the Veterans Education Council was passed may be appointed to the Council during the ten~ for which he was elected to the General Assembly.
April 14, 1947 Dr. M. D. Collins State Superintendent of Schools
Your letter of April 9th received. You request my opinion as to whether or not members of the General Assembly who served as such at the time Veterans Education Ceuncil was set up could serve on the Council if they were appointed by the Governor.
The Veterans Education Council was established by an Act approved March 27, 1947. Section 5 of the Act provides in part as follows:
"There is hereby established within the State Government a Veterans Edu-
cation Council which shall be composed of nine members **** who shall serve
for a term of four years and until their successors shall be selected and qualified. Members of the Veterans Education Council shall be appointed as follows: The Governor shall select two men from a list of four submitted by the State Board of Regents, two men from the list of four submitted by the State Board of Education, four men from a list of eight submitted by the Veterans Service Board and one man of his own choosing."
The members of the Council are appointed by the Governor for a term of four years and the Council is given broad and general powers. The Council is designated the agency of the State to cooperate with the officials of the United States in the administration of all laws of the United States conferring education benefits upon veterans. The Council may accept grants and enter into contracts with the Federal Government for the training of veterans under Federal rules 'and regulations. The Council is given power to approve courses of study and to accredit institutions. Powers heretofore vested in the Veterans Service Board are transferred by the Act to the Veterans Council. Under Section 21 of the Act the Budget Authorities of the State are authorized to transfer appropriations to the Council for carrying out the provisions of the Act.
An office is a public station or employment conferred by the appointment of the Governor, Polk v. James, 68 Ga. 128.
A public office is an agency of the State. 29 Words and Phrases, p. 249.
The Veterans Council as created is made an agency of the State and broad powers and duties are assigned to the officers. Clearly the members of the Council are public officers, and the Council is a public office.
Paragraph 6, Section 1, Article 3 of the Constitution of 1945 provides as follows:
"No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or either of them except Justices of the Peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of him shall have a seat in either house; nor shall any Senator, or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto,

350
during the time for which he shall have been elected, unless he shall first resign his seat, provided, however, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term."
The last sentence of this constitutional provision provides that no Senator or Representative shall be appointed to any civil office which has been created during the term for which he was elected. Under the Act the members of the Council receive no salary or per diem or other payment except actual traveling expenses and actual expense incurred when upon attendance of meetings of the Board.
However, notwithstanding the fact that the office has no profit, it is one of public trust. I am of the opinion that members of the General Assembly who served as such at the time the office was created can not be appointed, and can not serve as members of the Council.
GENERAL ASSEMBLY-Veterans Education Council A member of the General Assembly at the time the Act creating the Veterans Education Council was passed, may, during the term for which he was elected, and after resigning from the General Assembly, be elected Director of the Council.
July 28, 1947 Hon. F. H. Rayfield, Chairman Veterans Education Council
Your request for an opinion as to the eligibility of Captain F. A. Sams, to serve as Director of the Veterans Education Council, received,
You state that Captain Sams was a member of the Georgia State Senate at the time the Act creating the Council was passed in 1947, (Ga. L. 1947, pp. 1143, 1151), and that he had been employed by the Veterans Education Council as Director and is now serving in that capacity. I understand that Captain Sams has resigned from his office as State Senator.
The eligibility of Captain Sams to serve as Director of the Veterans Council has been raised because of the provisions of Paragraph 6, Section 4, Article 3 of the Constitution of 1945, which provides as follows:
"'Eligibility; appointments forbidden. No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or either of them except Justices of the Peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of him shall have a seat in either house; nor shall any Senator, or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected, unless he shall first resign his seat, provided, however, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term."
Section 2-1507, Code of 1933, (Paragraph 7, Section 4, Article 3 of the Constitution of 1877) was similar to the Constitution of 1945. The Constitution of 1945, 'as the only exception, added the following language:

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"Unless he shall first resign his seat, provided, however, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term."
Under the Constitution of 1877 a Senator or Representative, after his qualification as such, was ineligible to be elected by the General Assembly, or appointed by the Governor to any office or appointment having any emolument annexed, during the term for which he was elected, regardless of the time when such office was created. A Senator or Representative could not resign and be elected by the General Assembly or appointed by the Governor to any civil office.
The Constitution of 1945 gave the Senator or Representative the right to resign from the General Assembly and to accept an office by appointment of the Governor or by election of the General Assembly where such office was not created during the term for which he was elected. The Constitution of 1945 also added a proviso, which is as follows:
"However, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term."
The general purpose of a proviso is to except a clause covered by it from provision of the statute, or to qualify operation of statute. See Georgia Railroad & Banking Company v. James M. Smith, et a!. 128 U. S. 17 4, 32 Law Ed. 377.
Construing the proviso as excepting offices created while the Senator or Representative served as such, from the provision of the Constitution to the effect that the Senator could resign and accept appointment by the Governor or General Assembly, it seems clear that the Constitution only prohibits the appointment or election by the Governor or General Assembly to newly created offices.
Prior to 1935 the statutes provided that no member of the General Assembly shall, during the term for which he had been elected, be eligible to be appointed or employed by any Department, Board, Bureau, or other State agency in any capacity whatsoever. That provision of the law was repealed by the General Assembly. (See Ga. L. 1935, p. 121). The General Assembly by providing that no member of the General Assembly would be eligible to be appointed or employed by any Department, Board, Bureau, or other State agency in any capacity clearly construed the provision of the Constitution to mean that the Constitution dealt only with elections and appointments by the General Assembly and the Governor of the State.
I am, therefore, of the opinion that the proviso attached to the provision in the 1945 Constitution construed with the context of the whole clearly means that no Senator or Representative shall be appointed by the Governor or the General Assembly to any civil office which had been created during the term for which such Senator or Representative was elected.
I am also of the opinion that as the General Assembly in 1935 saw fit to abolish the ineligibility of members of the General Assembly appointed or employed by Boards, Bureaus, and other State agencies, that Captain Sams is eligible to be elected or appointed by the Veterans Education Council created under the Act of 1947.
I have based the above stated conclusion upon the presumption that the

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Director for the Veterans Education Council constitutes a civil office. However, I have very serious doubts as to whether or not the Director of the Veterans Education Council is a civil office within the meaning of the Constitution. I am of the opinion from the terms of the Act that the Director is an employee of the Veterans Education Council. Section 7 of the Act, (Ga. L. 1947, pp. 1143, 1151), provides in part as follows:
"There shall be a Director of Veterans Education who shall be elected by the Council and shall serve at the pleasure of the Council. He shall be the executive officer of the Council, and when the Council is not in session, shall have, and may exercise, all of the powers, and perform all the duties, vested in and required of the Council by this Act, subject to the rules and regulations of the Council."
Under said Section of the Act the Council fixes the amount of compensation payable to the Director. Under this Section the Director is employed for no definite tenure of office, he has no fixed salary; the Veterans Education Council fixes both the tenure and the salary. While the Act does state certain powers and duties that he shall perform, they are performed under Section 7 subject to the rules and regulations of the Council.
Section 7 of the Act should be construed with other provisions of the Act. Section 16 of the Act provides as follows:
"Neither the Director nor any person employed by the Council, except in a technically expert or professional, secretarial, clerical or subordinate capacity, shall be eligible for employment in the department unless such person has honorably served not less than three consecutive months in the armed forces of the United States in time of war or unless such person shall be the wife, widow, father, mother, daughter or sister of such veteran."
Under Section 16 of fthe Act neither the Director nor any other person is eligible for employment in the Department unless such person has honorably served three months in the armed forces of the United States in time of war, or unless such person shall be the wife, widow, father, mother, daughter or sister of a veteran. Again in Section 19 of the Act the Director is classified as an employee of the Council. Said Section 19 in part provides as follows:
"All employees of the Council except the Director shall be classified and governed by such rules of job classification, appointment, promotion, demotion, dismissal, personnel administration, basis of compensation, probationary employment, retirement and seniority privileges and other employment standards as may now or hereafter be set up under such system of Merit control as may be authorized by the Act approved February 4, 1943 (Georgia Laws 1943, pages
171-177), ****"
The General Assembly thus classifies the Director as an employee and not as a civil officer as defined by the Constitution of 1945.
I am, therefore, of the opinion that Captain Sams is eligible to serve as Director of Veterans Education Council under his election or appointment by the Council, even though it be conceded that such a position of employment was created by the General Assembly in which he served as Senator.

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HABEAS CORPUS (Unofficial) A superior court judge may make a writ of habeas corpus returnable to any county in the circuit, but the proceedings should be recorded in the county where the detention occurred.

Hon M. Price, Judge

October 1, 1946

Superior Court

Ludowici, Georgia

Your letter of September 28th received. You request my unofficial opin-

ion of whether or not you would be legally authorized to hold habeas corpus

hearings in Long County where petition is brought by inmates of the State Prison

at Reidsville, Tattnall County, against the Warden.

Section 24-2616 of the Code of 1933 among other things provides:

"The judges of the superior courts have authority. . . . 1. To grant for

their respective circuit writs of certiorari, supersedeas, quo warranto, man-

damus, habeas corpus, and bail in actions ex delicto."

Title 50 of the Code deals with habeas corpus. Section 50-103 provides

as follows: "The petition must be verified by oath of the applicant or some other per-

son in his behalf, and may be presented to the judge of the superior court of

the circuit where the illegal detention exists, who may order the party restrained

of his liberty to be brought before him from any county in his circuit; or it may

be presented to the ordinary of the county, except in cases of capital felonies

or where a person is held for extradition under warrant of the Governor."

You will note that the above section provides that petition for habeas

corpus may be presented to the judge of the Superior Court of the circuit where

the alleged illegal detention exists, and that the judge may order the party

restrained of his liberty to be brought before him from any county in his cir-

cuit. This section should be construed, in my opinion, in connection with Section

50-104 of the Code which provides as follows:

"If upon examination of the petition it shall appear to the judge that the restraint of liberty is illegal, he shall grant the writ of habeas corpus, requir-

ing the person thus restraining the liberty of another, or illegally detaining

another in his custody, to bring such person before him, at a time and place

to be specified in the writ, for the purpose of an examination into the cause of the detention."

In substance this section provides that when a petition is presented and

it shall appear to the judge that the restraint is illegal the judge shall grant

the writ and require the person restraining the libE:rty of another to bring

such person before him, at a time and place to be specified in the writ for

the purpose of an examination into the cause of detention.

Justice Cobb in discussing the jurisdiction of a judge of a superior court

over habeas corpus matters in the case of Simmons v. Georgia Iron and Coal Company, 117 Ga. 305, on page 316 states as follows:

"The jurisdiction of a judge of the superior court is fixed by such a law,

and extends over the territorial limits of his circuit, and a writ granted by
him may be made returnable to any county in his circuit. *' * * The proceed-
ings should be recorded in the county where the detention occurred."

I am of the unofficial opinion that you would have the right to direct in

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your order that the party restraining one of his liberty should bring such party restrained before you in any county in your circuit for a hearing. The proceedings should be recorded in the county whue the detention occurred.
INDUSTRIAL RELATIONS-Maximum Hours Whether section men and fixers in textile factories are within the maximum hours provisions of the State law depends upon whether their work is a necessary part of th: day's operation, and not merely incidental thereto.
January 23, 1946 Hon. Ben T. Huiet, Commissioner State Department of Labor
Your letter in which you request my official opmwn as to whether or not section men and fixers in textile factories may properly be considered as being within the purview of the exemption applicable to maximum hours per week, as contained in Code SE:ction 54-201, is hereby acknowledged.
Code Section 54-201 is as follows: "The hours of labor required of all persons employed in all cotton or woolen manufacturing establishments in this State, except engineers, firemen, watchmen, mechanics, teamsters, yard employees, clerical force, and all help that may be needed to cl:an up and make necessary repairs or changes in or of machinery, shall not exceed ten hours per day; or the same may be regulated by employers so that the number of hours shall not in the aggregate exceed 60 hours per week: provided, that nothing herein contained shall be construed to prevent any of the aforesaid employ:es from working such time as may be necessary to make up lost time, not to exceed ten days, caused by accidents or other unavoidable circumstances." It will be noted that this particular Act of the Georgia Legislature was passed in 1889, many years prior to the passage of the Fair Labor Standards Act by the United Stat:s Congress, and many years prior to the passage of the Wages and Hours Law. The statute above, of course, could not be of force in an industry which is engaged in interstate commerce, since subsequent Federal statutes have been enacted which in law supersede State statutes. In considering the statute above quoted, it is obvious that thEo evil sought to be remedied by the Legislature of Georgia was the unreasonable hours of service of employees working in cotton and woolen manufacturing establishments. In dEotermining whether or not section men and fixers are exempt under the statute, in a case where the statute applies, I think it is necessary to determine whether the work done by the section man and fixer is a necessary part of a day's operations, and whether such work is necessary in producing the product manufactured and not incidental thereto. It is obvious that if it is necessary to have a section man and a fixer at all times while the machines are operating, during the normal course of the day's work, such sEoction man and fixer would not be exempt under the statute. The statute above quoted expressly allows work in excess of the maximum hours fixed therein under special conditions, and under extraordinary circumstances; and it implies what those conditions and extraordinary circumstances are. If the work of the section man and fixer is necessary during thEo normal hours of work in order for the machinery to produce the article manufactured,

355
it would obviously be contrary to the spirit of the quoted statute to work such section man and fixer in excess of the hours prescribed therein.
The mechanics and supervisors excepted undH the statute, I believe, would have reference to those mechanics and supervisors who would fix broken or worn out machinery, or make alterations and repairs upon old machinery, or install new machinery, or do any other type of mechanical work not ordinarily contemplated to be a part of the normal productive process.
It is my opinion that it is illegal for an employer to work employees longer than thE: maximum number of hours under ordinary circumstances, and in the normal course of employment; and that this rule would apply to section men and fixers, as well as to any and all other types of workers not specifically exempted under the statute.
If, however, the section men and fixers referred to, or any other workE:rs, are bona fide employed in strictly mechanical pursuits, that is to say, making mechanical changes, repairs and other work as indicated under Section 54-201, and where such work would not ordinarily be necessary to maintain the production of the cotton or woolE:n manufacturing establishment; and where the type of mE:chanical changes or mechanical work done by such employees cannot be done during the normal work day, and where such work cannot be done within the maximum limitation of working hours fixed by the statute, then such excess hours of work would be covered by the exception found in the statute, and would not be a violation of the law.
It is my opinion, also, that in determining whether or not one is a mechanic or one of thE: other exemptions provided in Section 54-201 is largely a matter of fact; and that there is no categorical answer to your question, but that each case would have to be governed by the surrounding facts and circumstances. The statements made herein, I believe, would be the broad outline of the standards to be applied in determining whether or not one working in excess of 60 hours per week would be an exempted employee within the purviE:w of said statute.
INDUSTRIAL RELATIONS-Merit System (1) Under the Merit System Act and regulations the Commissioner of Labor may, after notice in writing, dismiss an employee of the Bureau of Unemployment Compensation for cause without the approval of the Governor or a hearing. (2) Notice of dismissal need not be signed by the appointing authority if authorized by him. September 4, 1946
Hon. Edwin L. Swain, Director Merit System Administration
This will acknowledge a recent letter of the State Personnel Board, in which an official opinion is requE:sted on certain legal questions pending before the State Personnel Board, as a result of an appeal filed by an employee who was dismissed from the position of Chief Field Deputy, State Employment Security Agency, in the State Department of Labor.
This letter states the following: "The employee contends that his dismissal was illegal because he was not given the benefit of any rights conferred by Annotated Code, Supplement, Section 54-120, which provides:

356
" 'The Commissioner, with the approval of the Governor, may remove from office any officer or employee in the Department upon notice and hearing, for neglect of duty or malfeasance in office.' Ga. L. 1937, pp. 20, 237."
The question posed in this request is whether Code Section 54-120, supra, is applicablE> to employees of the Bureau of Unemployment Compensation and entitles such employees to a hearing and the approval of the Governor before they may be dismissed.
On March 13, 1939, Hon. Ellis Arnall, while serving as Attorney General, rendered an official opinion in which he held that Section 8 (b) of the Act establishing the Department of Labor (Ga. L. 1937, pp. 236-237) applied to the Unemployment Compensation Division in the State Department of Labor. Section 8 (b) above referred to contains the paragraph now found in the Pocht Part Supplement to the Annotated Code as Section 54-120. It is therefore unnecessary for me to again rule on the question dealt with in the opinion of my predecessor. I will, therefore, limit this opinion to the question of whether Section 54-120, supra, has been repealed by the Act creating the Merit System (Ga. L. 1943, pp. 171-177). The pertinent parts of the Merit System Act to the question before us may be summarized as follows:
"Section 1 (a). That there is authorized to be created and established a Merit SystE>m of Personnel Administration covering the employees of the State and County Departments of Public Welfare (other than employees of eleemosynary institutions and county welfare board members), and/or the Bureau of Unemployment Compensation of the State Department of Labor.
"Section 3. Functions and duties of the Merit System Council. The Merit System Council shall hold regular meetings at least once each month and may hold such additional meetings as may be required for the proper discharge of its duties. It shall be the duty and the function of the Merit System Council: (a) to represent the public interests in the employment of personnel administration in the aforementioned State Departments. (b) After public hearings to adopt and amend rules and regulations effectuating thE> Merit System of Personnel Administration which may be established under this Act. Such rules and regulations shall include provision for the establishment and maintenance of classification and compensation plans, the conduct of examinations and the establishment of registers of persons E>ligible for appointment under the Merit System, the certification of eligible persons, appointments, promotions, transfE>rs, demotions, separation, tenure, reinstatement, appeals, service ratings, payroll certification and other phases of merit system administration. . . . (f) To conduct hearings and rE>nder decisions on charges preferred against persons employed in the several departments which are included in the Merit System."
"Section 4. Dismissal and hearing. No employee of any department which has been brought under this Act under an Executive Order issued in accordance with Section 1 hereof, and who is included under the terms of the rulEs and regulations prescribed by the Merit System Council, may be dismissed from said department except for good cause, as shall be specified in the RulEs and Regulations of the Merit System Council. . . . Any employee who is dismissed shall have the right of appeal under the terms of the Rules and Regulations prescribed by the Merit System Council."
We have cited the above provisions of the Merit System Act, in order to show the legislative intendment to deal with the subject matter of personnel

357
administration in a rather exhaustive and comprehensive manner. It will particularly be noted that Section 2 (b), after enumerating the many provisions which must be included in the rules and regulations, concluded by giving the Merit Council authority over other matters not previously mentioned by stating, "and other phases of Merit System administration."
In Section 4 of the Merit System Act, it is specifically provided that no :mployee of a department subject to this Act may be dismissed, except for good cause, as shall be specified in the Rules and Regulations of the Merit System Council.
In pursuance of the above statutory authority, the Merit Council (now State Personnel Board) passed the following rule:
"Rule XI, Section 3, Paragraph 2. Dismissals. The appointing authority, after notice in writing to an employee stating specific reasons therefor, a copy of which the appointing authority shall send to the Director, may dismiss any employee for cause as herein defined. For the purpose of these rules, 'cause' for dismissal shall be negligence or inefficiency in performing the duties of the position held, unless unfitness to perform assigned duties, guilt of gross misconduct, or insubordination. Such employees may appeal to the Council within 15 days from effective date of dismissal, and if the Council exonerates such employee from the charges on which his dismissal is based, such employee shall be r:instated to the position from which he was dismissed. Provided, however, any employee convicted by a court of record of any crime involving moral turpitude, when such conviction is final, shall have no recourse to the Council."
The appointing authority is defined in Paragraph 2 of Rule 1, as follows:
" 'Appointing authority' means in the case of the Bureau of Unemployment Compensation, the Commissioner of Labor; ..."
As we construe S:ction 4 of the Merit System Act, together with the Rules and Regulations promulgated thereunder, as set forth above, we are led to the conclusion that the Commissioner of Labor is the appointing authority and that he is empowered under the present Rules and Regulations of the Merit Council to dismiss an employee covered by the Act; provided, he has good cause for such action of dismissal. It seems that Section 54-120 (Ga. L. 1937, pp. 236-237) is in conflict with these provisions of the Merit System Act of 1943. The latter Act grants to the Commissioner of Labor the authority of removing an employee covered by the Act for good cause. This later statute, as we construe it, fully covers the subject of dismissal of employees. The Act of 1937 must give way to the later and more compr:hensive legislation on this subject. In Central of Georgia Ry. Co. v. Keating, 45 Ga. App. 811, this rule of construction is stated as follows:
""When a revising statute covers the whole subject matter of anteced:nt statutes, it virtually repeals the former enactments, without any expressed provision to that effect. Where some parts of the revised statut: are omitted in the new law, they are not, in general, to be regarded as left in operation, if it clearly appears to have been the intention of the Legislature to covtr the whole subject by the revision. (Butner v. Boifeuitte, 100 Ga. 743.) ."
Also, in Horn v. State, 114 Ga. 509, the Court held: "The rule as to repeal by implication is, in such cases, so far as we can ascertain from the authorities, that when the Legislature intends to revise a former Act ... or to deal exhaustively with the subject of all or part of the

358
original Act, and a portion of the original Act is left out such omitted portion is repealed by implication."
In view of the above provisions of law, I am of the opinion that Section 8 (b) of the Act of 1937 (Ga. L. 1937, pp. 236-237, Annotated Code 54-120) has been repealed by the provisions of the Merit System Act previously referred to in this opinion.
In your letter you raise the further question of whether the notice of dismissal in this cas: from the Commissioner of Labor, by Director, Employment Security Agency, amounted to a written notice from the Commissioner of Labor. As I understand this question from your letter, the Director of the Employment Security Agency signed his name to the notice of dismissal and underneath his signature was the printed name of the Commissioner of Labor.
Paragraph 2, of Section 3, of Rule IX, provides, in part, as follows: "The appointing authority, after notice in writing to an employee stating specific r~:;asons therefor, a copy of which the appointing authority shall send to the Director, may dismiss any employee for cause as herein defined." The above rule does not specifically require the actual signatur: of the appointing authority to be inscribed on the notice of dismissal. It seems that the rule does require that the notice b: authorized by the appointing authority. It could very easily be ascertained at the hearing whether or not the appointing authority, in this case the Commissioner of Labor, had actually authorized the notice of dismissal. It should be noted in passing that the Employment Security Agency is administered by a full-time salaried director, and that this director is "subject to the supervision and direction of the Commissioner of Labor". See Section 54-628 of the Annotated Code. In answer to your second question, it is my opinion that the notice of dismissal having been signed by the Director, over the printed signature of the Commissioner of Labor, is in keeping with the rule of the Merit System as above set forth.
INDUSTRIAL RELATIONS-Unemployment Compensation The Employment Security Agency is the proper Stat: agency to administer the state-wide system of public employment offices in cooperation with the United States Employment Service.
October 17, 1946 Hon. Ben T. Huiet, Commissioner State Department of Labor
At your request, this office has had under considHation the question of statutory authority for the State's accepting the terms of the Wagner-Peyser Act and creating the state agency to administer the state-wide system of public employment offices in cooperation with the United States Employment Service.
You are accordingly advised that such statutory authority is contained in an act of the General Assembly of Georgia approved March 29, 1937 (see Ga. L. 1937, p. 806; Ga. Ann. Code 54-659). Thes: statutory provisions of the Georgia Law provide, in!er alia, as follows, namely:
"Employment Security Agency; creation; director. There is hereby created in the Department of Labor a division to be known as the Employment Security

359
Agency, which shall be administered by a full-time salariE;d director, who shall be subject to the supervision and direction of the Commissioner of Labor. The Commissioner by and with the approval of the Governor is authorized to appoint, fix the compensation of, and prescribe the duties of such director, provided that such appointment shall be made on a nonpartisan, merit basis." Ga. Ann. Code 54-628.
"Same; divisions. There is hereby established in the Employment Security Agency, two coordinatE; divisions, the Georgia State Employment Service Division, created pursuant to Section 54-643, and the Unemployment Compensation Division. Each division shall be responsible for the discharge of its distinctive functions. Each division shall be a separate administrative unit with respect to personnel, budget, and duties except in so far as the Commissioner may find that such separation is impracticable." Ga. Ann. Code 54-629.
"Duties and powers of Commissioner.-It shall be the duty of the Commissioner to administer this Chapter, and he shall have power and authority to adopt, amend, or rescind such rules and regulations, to employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as he deems necessary or suitable to that end. Such rules and regulations shall be effective upon publication in the manner, not inconsistent with thE; provisions of this Chapter, which the Commissioner shall prescribe. The Commissioner shall determine his own organization and methods of procedure in accordance with the provisions of this Chapter, and shall have
an official seal, which shall be judicially noticed. ,.. * *". Ga. An.n. Code 54-631.
"Personnel. Subject to other provisions of this Chapter, the Commissioner is authorized to appoint, fix the compensation, and prescribe the duties and powers of such officers, accountants, attorneys, experts, and other persons as
may be necessary in the performance of his duties under this Chapter. * * *"
Ga. Ann. Code 54-634.
"State Employment Service.-The Georgia State Employment Service is hereby established in the Department of Labor as a division of the Employment Security Agency. The Commissioner, through such division, shall establish and maintain free public employment officers in such number and in such places as may be nE:cessary for the proper administration of this Chapter and for the purpose of performing such duties as are within the purview of the Act of Congress entitled 'An Act to provide for the establishment of a National Employment System and for cooperation with the States in the promotion of such system and for other purposes', approved June 6, 1933 ( 48 Stat. 113; U.S. C., Title 29, Sec. 49 (c)), as amended. The said division shall be administered by a full-time salaried dirE:ctor, who shall be charged with the duty to cooperate with any official or agency of the United States having powers or duties under the provisions of the said Act of Congress as amended and to do and perform all things necessary to secure to this State the benefits of the said Act of Congress, as amended, in the promotion and maintenance of a system of public employment offices. The provisions of the said Act of Congress, as amE;nded, are hereby accepted by this State, in conformity with Section 4 of said Act, and this State will observe and comply with the requirements thereof. The Georgia State Employment Service Division is hereby designated and constituted the agency of this State for the purpose of said Act. The Commissioner is directed to appoint the director, othE:r officers, and employees of the Georgia Employment Service. Such appointments shall be made

360
in accordance with regulations prescribed by the Director of the United States Employment Service, and shall be confined to bona fide residents of the State of Georgia." Ga. Ann. Code 54-643.
"Financing.-All moneys rE:ceived by this State under the said Act of Congress, as amended, shall be paid into the special 'employment service account' in the unemployment compensation administration fund, and said moneys are hereby made available to the Commissioner for the Georgia State Employment Service Division, to be expended as provided by this Section and
by said Act of Congress. * *' *" Ga. Ann. Code 54-644.
The statutory authority above cited further providE:s that information obtained and records maintained should be kept confidential. The Act provides as follows, namely:
"* * * Information thus obtained or obtained from any individual pur-
suant to the administration of this Chapter, shall, except to the extent necessary for the proper presentation of a claim, be held confidential and shall not be published or be open to public inspE:ction (other than to public employees in the performance of their public duties) in any manner revealing the individual's or employing unit's identity, but any claimant or his legal representative at a hearing before an appeal tribunal or the Board of Review shall be supplied with information from such 'records to the extent necessary for the proper presentation of his claim." Ga. Ann. Code 54-637.
It follows, therdore, that the Employment Security Agency, successor to the Georgia Unemployment Compensation Bureau is the duly authorized state agency to submit a plan of operations and administer the State Employment Service, in accordance with the Act of June 6, 1933 (48 Stat. 113) as amended, IV of the Servicemen's Readjustment Act of 1944, as amended, and the pertinent provisions of the Labor-Federal Security Agency Appropriations Act of 1947.
INDUSTRIAL RELATIONS-Unemployment Compensation The CommissionE:r of Labor may enter into arrangements with agencies of other States for the determination and payment of interstate benefit claims under the Unemployment Compensation Act.
November 27, 1946 Hon. Ben T. Huiet, Commissioner Department of Labor of Georgia
Your letter of November 19th received. You request that I advise as to your authority to enter into interstate arrangements with agenciE:s of other states for determination and payment of interstate benefit claims under the Unemployment Compensation Act of Georgia.
Section 54-642 of the 1945 cumulative pocket part of the Annotated Code provides as follows:
"The Commissioner is also authorized to enter into arrangements with the appropriate agencies of other states or of the Federal Government (1) whereby wages or services, upon the basis of which an individual may become entitled to benefits under the unemployment compensation Jaw of another state or of the Federal Government, shall be deemed to be wages for employment by employtrs for the purposes of sections 54-603 and 54-608 and section 54-609 (c), provided such other state agency or agency of the Federal Gov-

361
ernment has agreed to reimburse the fund for such portion of benefits paid under this Chapter upon the basis of such wages Qr services as' the Commissioner finds will be fair and reasonable as to all affected intere:sts, and (2) whereby the Commissioner will reimburse other State or Federal agencies charged with the administration of unemployment compensation laws with such reasonable portion of benefits, paid under the laws of any such other state or of the Federal Government upon the: basis of employment or wages for employment of employers, as the Commissioner finds will be fair and reasonable as to all affected interests. Reimbursements so payable shall be deeme:d to be benefits for the purposes of Sections 54-606, 64-624 to 54-627a, but no reimbursement so payable shall be charged against any employe:r's account for the purposes of Sections 54-620 to 54-622. The Commissioner is hereby authorized to make to other State or Federal agencies and receive from such other State or Federal agencies, reimbursements from or to the fund, in accordance with arrange:ments pursuant to this section."
Unquestionably, under this Section, you have authority to enter into such arrangements for the determination and payment of benefit claims under the Unemployment Compensation Act.

INSURANCE-Agents (1) A person examining or inspecting a risk is an insurance agent, and must qualify as such. (2) Insurance agents may act only for companies authorized to transact business in the State.

Ron. Zack D. Cravey Insurance Commissioner

August 5, 1947

I am pleased to acknowle:dge your letter of July 30th, in which you ask

whether or not an unlicensed casualty or fire insurance company can do busi-

ness in this State in a limited or restricted way, referring particularly to Lloyds of London. The facts relating to the proposed business are set forth in an attached communication written by Mr. A. Walton Nall to D. K. MacDonald and Company, the agency proposing to write certain fire, theft, collision, casualty and excess coverage insurance through the underwrite:rs of

Lloyds of London. Briefly, the facts stated by Mr. Nall are as follows:

"You would not be represented by and would solicit no business in Georgia through any agent. You would issue insurance on the basis of direct applications received from residents of the State of Georgia (not transmitted by an

insurance agent). The applications would be rece:ived and policies issued in

Seattle and mailed direct to the applicant in Georgia. You would maintain no

office in the State of Georgia. You would appoint qualified inspectors solely

for the purpose of determining the desirability of writing any particular insurance applied for by residents of the State of G&orgia. You would have the assured immediately notify the Insurance Commissioner of the State of Georgia,

giving the name and locality of your company, the type of insurance which

they had accepted and paying licenses, fees and taxes levied against com-

panies qualified to do business in the State of Georgia to the Insuranc& Commissioner."

362
Section 56-501 of the Code of Georgia defines an insurance agent as follo\VB:
"Any person .... who shall examine or insp~:;ct any risk at any time . shall be held to be the agent of the company for which the act shall be done or the risk shall be taken."
It should be noted that the method of doing business as outlined above provides for the appointment of "qualified inspectors solely for the purpose of determining the desirability of writing any particular insurance." It would follow that the inspectors under Section 56-501, supra, would be classified as insurance agents representing the company for which the act was done, or the risk taken. This would mean that the inspectors under this statute would be acting as agents for Lloyds of London.
Section 56-502 of the Code imposes certain civil liability on agents of unauthorized companies, and the proviso relieves the agent of such penalty under certain conditions. It should be noted however, that this section does not in any way modify the definition of an insurance agent as set forth in the section first referred to htrein. Section 56-506 of the Code provides:
"No person shall act as agent in this State of any insurance company of this or any other State or foreign Government, doing a business in any manner, until said company shall have fully complied with the provisions of this Title and received from the Insurance Commissioner certificates of authority for itself and its agents to transact business in this State...."
Th~:; above statute clearly prohibits an agent from representing any insurance company of this or any other State or foreign government until said company fully complies with the insurance laws of this State and receives from the Insurance Commissioner a proper certificate of authority to do business herein. Applying the above rule to the facts before me, I am compell~:;d to hold that Lloyds of London are prohibited from having agents in this State until Lloyds has first complied with the requirements of our laws in refer~:;nce to the doing of business in this State. It also follows that no person could act as an agent for the inspection of claims or risks in Georgia until Lloyds had complied with the laws of our State. Our statute makes the inspection of any risks the doing of business in this State, and subjects the person performing such a duty to the laws governing the insurance agents. Then, Section 56-506 provid~:;s that such person cannot act as an agent of an insurance company which is not authorized to transact business in this State.
Our law is designed to prevent any person from acting as the agent of a company not lawfully authorized to transact business in this State. The converse of this principle is stated in Section 56-524 which provides:
"Any company lawfully authorized to transact business in this State may contract with and appoint as its representative in this State any person as its agent who holds an unexpir~:;d agent's license issued under the provisions of this Chapter, by filing with the Insurance Commissioner a certificate showing the name and address of such appointee and by paying such fee as is provided by law."
The gentral intent of the Legislature to prevent unlicensed companies from doing business in this State is further shown by Section 56-528 which provides:
"No corporation, individual, firm or association not licensed in Georgia to transact the business of fire and casualty insurance, or the writing and issue

363
of fidelity and surety bonds, shall so engage in such business within the limits of this State; nor shall any person act as agent for any company, individual, firm, or association engaged in the writing of such business, unless such person has himsE:lf first received a license from the Insurance Department to represent a company duly authorized in the State. Penalty for the violation of this provision on the part of the corporation, individual, firm or association illegally engaged in the writing of business in this State as herein provided shall be $1,000 for the first offense and $2,000 for each additional offense."
Section 56-529 of the Code provides as follows: "No individual, firm, corporation or association residing or doing business in this State shall accept a policy of firm or casualty insurance, or fidelity or surety bond issued by a nonadmitted company, individual, firm or association in violation of Section 56-528, unless such individual, firm, corporation, or association shall immediately report the fact to thE: Insurance Commissioner, giving the name of the company issuing the policy or contract stating its amount and the premium paid thereon, and shall thereupon pay to the Insurance Commissioner the license fee properly chargeable against such company if it were admitted to the State, and the premium tax chargE:able under Section 92-2509 upon the amount of premium so paid." The above Section while apparently relieving the Georgia corporation or firms from the penalty set forth in Section 56-528 upon the performance of certain conditions by the Georgia agency, does not in any way mitigate the penalty of Section 56-528 against the unlicensE:d company or any person who attempts to act for that company in the writing of such business. The inspectors representing the unlicensed company would certainly not be relieved from the penalty. However, if this business was accepted by another Georgia corporation or firm authorized to do business in this State, thE: latter accepting firm or corporation by complying with the condition set forth in Section 56529 would be in a position to be relieved of the penalties exacted by Section 56-528. Section 56-530 simply provides a penalty on any corporation or person failing to comply with Section 56-529. There is nothing in this SE:ction which mitigates against the general design of the Georgia law to have both the insurance company and its agent subject to the jurisdiction and control of the Insurance Commissioner and the laws of this State. In view of the above provisions of law, I am of the opinion that persons who act as inspectors in the examination of risks are classified as insurance agents under our laws, and that such person can only act for and on behalf of licensed principals under the laws of this State.
INSURANCE-Bonds A bond given by an insurancE: company, made payable to "Eugene Talmadge, Governor of the State of Georgia, and to his successors in such office" is sufficient although Eugene Talmadge died before taking office after his last election. January 6, 1947
Ron. W. R. Mitchell Insurance Commissioner
I am pleased to acknowledge your recent letter, together with a copy of

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a bond given by the Glens Falls Indemnity Company, for the writing of workmen's compensation insurance.
You state that these forms were printed prior to the death of GovernorE,lect Eugene Talmadge, and you desire to know whether or not it is necessary to recall all of these forms since a provision therein states that the Company is "held and firmly bound unto Eugene Talmadge, Governor of the State of Georgia, and to his successors in such office, ..."
Of course it would be the better form to have the bond made payable to the proper person, but since the phrase which you have used also makes the bond payable "to his successors in such office,'', it seems that this would give the State ample protection should it be necessary to institute legal proceedings on the bond.
It should also strengthen this opinion by reason of the fact that Governor Talmadge did serve three terms as Governor of this State prior to the recent election. It is therefore my opinion that the terminology used in the bond, while not perhaps the best form, is sufficitnt under the law.
INSURANCE-Building Safety Regulations of the Building Safety Council must bt approved by the Department of Public Safety.
October 16, 1947 Hon. W. P. Kennard Director, Building Safety
I have your letter of October 9th in which you rtquest my opinion as to the construction of paragraphs (a) and (b) of Section 6 of the Georgia Building Safety Law (Ga. L. 1947, pp. 1452-1454), as they relate to the Department of Public Safety.
The paragraphs in question direct that certain rules and regulations be prepared for the approval of the Department of Public Safety.
You point out that inasmuch as all other activitits of the Building Safety Council are under the administration of the Insurance Commissioner, and that the Department of Public Safety is in a different field, the reference to the Department would seem to have been made in error.
Without questioning the logic of your conclusions, it is my opinion, that if there be trror it may be rectified only by the Legislature.
It is a primary rule of statutory construction that every word and part of a statute should be given effect if legitimately possible. See, Accident and Casualty Ins. Co. v. Cook, 72 Ga. App. 241, 246.
In Daniel v. Citizens & Sou. National Bank et. al., 182 Ga. 385 at page 395 it is stated:
"It is the duty of the courts, where possible, to give an act such construction as will give full force and effect to all of its provisions."
A further rule of statutory construction is stated in Neal v. Moultrie, 12 Ga. 104, 110 and quoted with approval in Nixon et al. v. Nixon, 196 Ga. 148 at 155 as follows:
"If the legislature does plainly and distinctly declare its intention, the act is not open to construction; it needs and can receive none. It stands selfinterpreted, and courts have nothing to do but to enforce it. . . . The principle which this rule embodies is that the courts have no right to change ltgis-

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lative language which is clear and unambiguous, and thereby create uncertainty and confusion as to the meaning of a legislative enactment."
Since the Legislature has stated the requirement as to the Department of Public Safety in clear and unequivocal terms, it is my opinion, that the paragraphs in question are not subject to a distinguishing construction, and that in order to give effect to all the terms of the statute they must be given full force. A further practical consideration is the fact that the regulations of the Building Safety Council may eventually be contested in the courts. Therefore, it seems advisable that the Council comply with the letter of the law, in order to insure the validity of the regulations.

INSURANCE-Casualty; Fire and Theft A company which has made a deposit to write casualty insurance is not required to make an additional deposit in order to write fire and theft insurance.

Hon. Zack D. Cravey Insurance Commissioner

April 15, 1947

This will acknowledge your letter of April 9th transmitting a copy of a letter from Mr. James S. 'Vilson, Jr., attorney, in which you request an official opinion covering the issues presented in Mr. Wilson's letter.
A careful examination of the letter of Mr. Wilson, together with your letter, presented the following question for consideration: Does Section 56-301, Georgia Code Annotated, require an insurance company licensed as a casualty organization by the Insurance Commissioner to deposit with the State Treasurer additional bonds in the amount of $10,000.00 in order to qualify as a fire insurance company, as a condition precedent to writing a fire and theft policy in connection with public liability and property damage-thus writing a comprehensive motor vehicle insurance policy?
I have studied the opinions of the Attorney General under date of March 29, 1937 and April 2, 1937, and I do not believe either of these opinions cover the situation which is here presented.
The. answer to the question depends entirely upon the construction of Section 56-301, Georgia Code Annotated, to ascertain the true intention of the General Assembly.
I quote herewith the pertinent parts of Section 56-301, Georgia Code Annotated:
"All fire, marine, and life, casualty, indemnity and inland insurance companies, chartered by other States or foreign Governments, shall deposit with the State Treasurer bonds of the United States, or bonds of this State which according to the Acts and resolutions of the General Assembly are valid, or bonds of any county or municipality in this State which have been validated under the laws of this State, of the first value of $10,000.00; ..."
"Provided, that no casualty company, now or hereafter doing business in this State, who as a condition precedent to, or in connection with the writing or offering to write other forms or kinds of insurance, other than casualty, has deposited with the State Treasurer, bonds in amount equal to the requirements of this Chapter, shall be required to make no further or additional deposit hereunder; and Provided, further, that such deposits heretofore or

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hereafter made shall be subject to any judgment rendered against such company or companie:~."
Your attention is directed to the second from the last proviso contained in Code Section 56-301, which is above quoted, and which proviso was added by the amendment of 1937.
The plain and unequivocal language of this proviso is that a casualty insurance company now doing business in this State, which has already made a deposit to write casualty insurance shall not be required to make an additional deposit to write fire and theft insurance.
It is my opinion, therefore, that the reverse is also true, and this proviso carries with it the interpretation that only one deposit shall be required for writing casualty insurancE; and other types of insurance for which no othe1 provision of law required a deposit of a greater amount.
INSURANCE-Funeral Contracts A licensed or unlicensed insurance company or agent may not sell policies which designate the person to conduct the funeral of the insured, restrict the right to purchase funeral services in the open market, or provide for payment in funeral services, merchandise, or other than lEgal tender of the United States.
l\Iarch 6, 1946 Hon. T. Walter Jackson Deputy Insurance Commissioner
Your letter of February 23, in which you request my official op1mon as to the procedure to be used by you in prosecuting persons for violating the insurance laws, by represE;nting unlicensed companies, and for soliciting and selling policies, contracts or certificates of insurance which designate persons to perform services with reference to burial, and which do not provide for the payment of the face amount of said policy, contract or certificate in legal tender, is acknowledged.
The opinion which hereinafter appears is made with regard to the following facts:
An insurance company not licensed to do business in Georgia is tbrough an unlicensed and lE;gally unqualified agent soliciting and selling insurance policies, contracts or certificates. The agent is collecting monthly payments on such policies, contracts or certificates. The instrument provides for the burial of the insured to be furnished in burial merchandise not to exceed a specified monetary value and designates the undertaking company to perform the burial.
Any person soliciting or selling insurance in Georgia whose company has not first received a certificate of authority from the Insurance Commissioner, shall be punished as for a misdemeanor, and shall also pay a sum equal to the State, county and municipal taxes and licenses required to be paid by insurance companies legally doing business in this State (Code Section 56-9905). Even should such company be qualified undE;r Code Section 56-401 and the laws pursuant thereto, persons soliciting insurance business for such company would also be guilty of a misdemeanor if such persons have not qualified as agents (Code Section 56-501 and 56-503).
It is my further opinion that insurance agents soliciting and selling in-

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surance policies for a company in Georgia, even though such company has complied with the qualification provisions of our State law, would also be guilty of a misdemeanor (1) if such agents should undertake to sell an insurance policy, contract or certificate upon the life of a citizen, which designates in said policy, contract or certificate the person, firm or corporation to conduct the funeral of the insured; (2) or which policy, contract or certificate tends to limit or restrict the freedom of choice in the open market of the person or persons having the legal right of such choice regarding contracts, purchases and arrangements of the funeral services for such insured; (3) or where the policy, contract or certificate doE:s not provide upon the face of the policy, contract or certificate, for the face amount stipulated therein to be paid in legal tender of the United States to the beneficiary named therein; (4) or where the policy, contract or certificate provides for furnishing ~n eral mE:rchandise or services upon the death of the person insured (Code Section 56-9925).
The foregoing conclusions apply with equal force to agents soliciting or selling life insurance policies, contracts or certificates, where the company for whom they are selling and soliciting such policies, contracts and certificates has not previously become qualified under the Code Sections cited supra. The violations are provided for in Code Section 56-9920, 56-9921 and 56-9923. The insurance policies, contracts or certificates prohibited in these sections are not marketable in Georgia; and anyone, whether licensed or not, is subject to criminal prosecution who sells or attempts to sell such a prohibited policy, contract or certificate.
Should your investigations disclose the existence of facts upon which the foregoing conclusions are reached by me, it is your duty as Insurance Commissioner of the State to see that the violators of the provisions of the code sections enumerated are prosecuted (Code SE:ction 56-9905).
It is my opinion that the method of procedure to be followed by you in carrying out the mandate of the law is to request thE: Solicitor General in the Circuit where such violations transpired to place the matter before the Grand Jury of the county in which the offense was committed.

INSURANCE-Health and Accident An employer may take out a health and accident insurance policy on his employee if he has a substantial economic interest in the continued services of the employee.

Ron. Zach D. Cravey Insurance Commissioner

July 7, 1947

I am pleased to acknowledge your letter of July 3rd, dE:aling with a specimen policy issued by the Mutual Benefit Health and Accident Association. You also attach a memorandum prepared by Mr. J. Van Wilhite, Policy and Claim Examiner of the State Insurance Department, in which the question is raised as to whether an employer has a sufficient insurable interest in an employee to warrant a policy of health and accident insurance to be issued on the employee in favor of the employer. You request that I advise whE:ther or not this is a valid policy, based upon the question presented above.

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I believe the following case will give you the answer to this quE:stion. In Turner v. Davidson et al., 188 Ga. 736, our Supreme Court held as follows:
"(1) An employer does not have an insurable interest in the life of his employee solely because of the relationship of employer and employee, but in order for such to appE:ar it must be shown that the employer had a substantial economic interest in the life of the employee; that is, that by virtue of the relationship he might be reasonably expected to reap a substantial pecuniary benefit through the continued life of such employee, and to sustain consequent loss upon his death. The mere fact that at the time the policy was issued the employee was under contract to the employer for a period of approximately a year does not, standing alone, disclose an insurable interest of the employer in the life of the employee. Accordingly, the evidence did not support the v~_:sdict in favo~ of the defendant employer for the proceeds of the policy of in!furance in question."
While the cited case deals with life insurance, it seems that the principle relating to the beneficiary having an insurable interest would likewise apply to health and accident policies. It is pointed out that the benefits payablE: under the certificate submitted, would reimburse the employer in a greatE:r amount than he is called upon to pay under the State Compensation Act. It is not shown how his interest in any event could exceed thE: liability imposed upon him by State law.
INSURANCE-Hospitalization ( 1) An insurance policy should be construed most favorable to the insured. (2) Hospitalization certificate interpreted as insuring against Caesarian operation.
April 24, 1947 Hon. Zack D. Cravey Insurance Commissioner
Your letter of April 17th, E:nclosing a letter from Mrs. Georgia Broome and J. T. Blalock, President, G~::orgia Mutual Hospitalization Service and the policy or certificate of insurance issued by the Georgia Mutual Hospitalization Service to Mrs. Georgia Ola Drawdy, received. You request my opinion on eight questions relating to the construction of the insurance certificate.
In the face of thE: certificate it is stated: "the Company hereby insures Georgia Ola Drawdy subject to all provisions, considerations and limitations hereinafter contained,". Following this clause the certificate, in the face of the policy, sets forth nine sections which are followed immediately by the signa tures of the officers of the company. Immediately prE:ceding Section 7 in the face of the certificate there appears the words "Special Coverage for Women". Following such words Section 7 provides as follows: "After ten months from date of issue of this certificate, the Company will pay $5.00 per day for a period of not exceeding ten days for hospital confinement due to normal childbirth; provided husband and wife hold like certificates."
Printed on the back of the face in large letters we find the following words: "Additional Provisions And Limitations". Immediately following such words there appears a Section designated as Section 10 which Section is divided into several paragraphs lettered beginning with ,(a) and ending with (1), and then follows in large letters the words "Standard Provisions". There

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are eleven paragraphs included under Standard Provisions. Paragraph 1 provides in part as follows:
"This certificate includes the endorsements and attached papers, if any, and contains the ~:;ntire contract of insurance."
Paragraph (e) of Section 10 provides as follows: "After six months from date of issue or six months from date of any re-instatement, this certificate is effective for operations."
Paragraph (f) of Section 10 provides as follows:
"After ten months from date of issue or ten months from date of reinstatement, this certificate is effective for pregnancy or childbirth, female ailments, hernia, cancer, tuberculosis, paralysis and alcoholism."
Mrs. Broome in her letter states that she has carried this policy for five years and that recently she has had to submit to a caesarian operation for the delivery of a baby. The Company has refused to pay for the operation or hospital expenses and contends that it is only liable in cases of childbirth where there is a normal birth and where the husband has a like policy with the Company. In your first question you asked for my opinion on the question of wheth~:;r or not the Company is liable to Mrs. Broome or the hospital for services rendered in connection with the operation, and if so, you request that I point out the services for which the Company should pay. This involves a construction of the certificate. There are certain well defined rules of law by which such a policy or certificate should be construed.
"It is well settled that contracts of insurance should be construed so as to carry out the true intention of the parties." Robinson v. Washington National Insurance Company, 72 Ga. App. 19.
"If a policy of life insurance is capable of two constructions, that interpretation will be placed upon it which is most favorable to the insured." Penn Mutual Life Insurance Company v. Milton, 160 Ga. 168. Parham v. Nadonal Relief Assurance Company, 33 Ga. App. 59. Eisenberg v. Hebrah Gemiluth Hesed Society, 33 Ga. App. 350.
"If one provision of a policy is absolutely repugnant to another provision, the one most advantageous to the insured will be enforced, while the other provision will be ignored." lnterocean Casualty Company v. Alford, 50 Ga. App. 260.
The question arises as to whethH or not the provisions quoted on the back of the policy should be included as a part of the contract of insurance. In Smyly v. Globe and Rutgers Fire Insurance Company, 28 Ga. App. 776, the court ruled in part as follows:
"Conditions and stipulations printed on the back of a fire insurance policy and not mentioned or referred to on the face of the policy are not part of the policy or binding on the assured."
In this connection see Pink v. A.A.A. Highway Express Inc., 191 Ga. 502. Construing the certificatE; under the rules hereinbefore referred to, it appears that it was the intention of both parties that the provisions and limitations printed on the back of the certificate should be made a part of the contract. The language "subject to all provisions, considerations and limitations hereinafter contained" as set forth in the policy, in my opinion, refers to provisions and limitations quoted on the back of the policy as well as those sE:t forth in the face of the policy. As point:::d out in the stai eme;~t the ccrtifi-

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cate contains ten numbered Sections and one of such Sections is printed on the back of the policy.
There seems to be a conflict between paragraphs (e) and (f) of Section 10 and Section 7. Construing the Section as a whole there may not be any conflict. However, construing the policy most favorable to th& insured as required by the rules of law hereinbefore cited, the Company would not be liable under the provision of Section 7, but would, in my opinion, be liable to the insured under the provisions of (e) and (f) of Section 10. Under the facts as submitted in the correspondence, hertinbefore referred to, there was no normal childbirth, yet there was an operation which resulted from pregnancy occurring ten months after the date of issuance of the policy, and under the terms of the policy the Company agreed to furnish hospital room, operating and delivery room, anesthetics, ambulance strvice, and medicines and supplies. I do not construe the policy as limiting the operation to any specific causes but as covering operations that may be necessary by reason of any illness or reasons set forth in paragraph (f) of Section 10. I think that this sufficiently answers questions 1 through 5. Questions 7 and 8 are answerEd also in the foregoing statement.
You request that I advise whether or not there should be any changes made in the form of the policy for the purpose of clarity and for the purpose of protecting the public who deal with such Associations.
Under Chapter 99-10 of the Cumulative Pocket Part of thE Annotated Code, this Company is organized as a non-profit corporation operating under the supervision of the Insurance Commission. The question of what should be in a policy, or the form that should be used, is under the administrative supervision of the Insurance Commission. Section 99-1015 of the Annotated Code provides in part as follows:
"Every such corporation shall issue to its members certificates of mem-
bership, set forth the contract between the corporation and the member *' * *."
I would suggest that the language appearing in the face of the policy as follows: "subject to all provisions, considerations and limitations hereinafter contained," should be made more definite and more specific so as to leave no question that the provisions on the back of the policy are included within the contract.
I am of the further opinion that the provision "provided husband and wife hold like certificates" as contained in Section 7 of the policy should be made more sptcific.
I call your attention to the fact that this identical form of certificate has not been construed by our courts, and of course, the courts might not agree with my construction. However, as an administrative policy, until the courts have decided otherwise, I am of the opinion that this Department should construe the policy most favorable to the insured.

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INSURANCE-Life Insurance Companies (1) Code Sec. 56-323 governs the conditions upon which the bonds on deposit with the State Treasurer may be returned to a life insurance company desiring to withdraw from the State. (2) A life insurance company is not required to re-insure its business or publish notice of its intention to withdraw from the State. April 28, 1947
Hon. Zack D. Cravey Insurance Commissioner
I have your letter of April 23, requf:sting an opm10n as to which section of the Code of Georgia is applicable to the return of bonds on deposit with the State Treasurer where a life insurance company wishes to withdraw from the State, and whether or not a life insurance company is required to re-insure its business in this State and publish notice of its intention to withdraw from the State.
It is my opinion that Code S:ction 56-323 is applicable to the situation under inquiry. This Section provides as follows:
"Withdrawal by company from State, return of bonds deposited.-When any company shall desire to withdraw from the State, and will satisfy the Insurance Commissioner that all suits pending against such company, and of which no notice has been given, have been fully satisfied, or whenever no notice of claim shall have been given, and when rights unde1 E:xisting policies shall have been satisfied and released as the provisions of this law require, the Treasurer shall return to said company the bonds so deposited, upon order from the Commissioner."
The above Code Section was enacted in 1887 and apparently only applied to fire, marine and inland insurance companies; howevel, since its codification in the Code of 1933, it is now the law of this State as it reads literally. In other words, it applies to "any insurance company", except those otherwise provided for.
It is felt that Cod: Section 56-324 and 56-325 are not applicable to life insurance companies, and, therefore, a life insurance company is not required to re-insure its business nor to publish notice of its intention to withdraw from the State.
Your attention is also invited to Code Section 56-605 which gives protection to an insured person or his estate by providing for service of process even though the insurance company has withdrawn from and ceased to do business in this State.
INSURANCE-Mutual Companies (Unofficial) Th: State and its political divisions may not insure public property in a mutual company if the insured assumes any contingent liability under the contract. October 11, 1945
Hon. J. Hunter White National Union Fire Insurance Company Atlanta, Georgia
Your letter of October 6, with respect to whether it is legal for a political division of the State to insure its property in a mutual company, is acknowledged.

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On September 27, 1943, the Department of Law renderEd an opinion to Governor Ellis Arnall, on this question. I have had my staff check very thoroughly recent decisions from other states involving the same question; and I find that the ruling of the Law Department of the above date is in substantial accord with the ruling in other statEs which have the same constitutional provisions as Georgia.
Paragraph 1, of Section 5, of Article 7, of the Constitution of Georgia, Code Section 2-5301, places the following restriction on contracts made by or on behalf of the State:
"The credit of the State shall not be pledged or loaned to any individual, company, corporation, or association, and the State shall not become a joint owner or stockholder in any company, association, or corporation."
The General Assembly shall not authorize the political divisions of the State to become stockholders, etc. See Paragraph 1, Section 6, Article 7 of the Constitution, Code Section 2-5401, which is as follows:
"The General Assembly shall not authorize any county, municipal corporation, or political division of this State to become a stock holder in any company, corporation, or association, or to appropriate money for, or to loan its credit to any corporation, company, association, institution or individual except for purely charitable purposEs. This restriction shall not operate to prevent the support of schools by municipal corporations within their respective limits, provided that if any municipal corporation shall offer to the State any property for locating or building a capitol, and the State accepts such offer, the corporation may comply with such offer."
The courts of Georgia have made certain rulings with respect to mutual insurance companies, and they are as follows:
In the case of Carlton, et. al. v. Southern Mutual Insurance Co., 72 Ga. 371 (6), "A mutual insurance company is based upon the idea that each of the assured becomes one of the insurers, thereby becoming interested in the profits and liable to the losses ..."
In Gaston v. Keehn, 69 Ga. App. 500, "A mutual insurance company is a cooperative enterprise, wherein the members constitute both insurer and insured, and contribute by a system of premiums or assessments the creation of a fund from which all losses and liabilities are paid, and profits are divided among themselves in proportion to their interests."
It would, therefore, appear that a county or municipality, or a school board could not insure their property in a strictly mutual company, because of the above restrictions.
However, undEr Code Section 56-1147, a mutual insurance company has authority to issue two kinds of policies. The Code Section is as follows:
"The maximum premiums payable by any member shall be expressed in the policy or in the application for the insurance. Such maximum premium may be a cash premium, and an additional contingent premium not less than the cash premium, or may be solely a cash premium. No policy shall be issued for a cash premium, without an additional contingent prEmium, unless the company shall have a surplus of at least one hundred thousand dollar~, or a surplus which is not less in amount than the capital stock required of domestic stock insurance companies writing the same kind of insurance."
A mutual insurance company may issue a policy designated as an "assessable policy"; in such a policy, the company would insure the property of the

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insured on the basis of a cash premium and an additional contingent premium to be assessed according to the terms of the policy or upon the losses or liability of the company. It is very evident that the State or any of the divisions thereof cannot legally insure its property with a mutual company by entering into a contract and securing what is known as an "assessable policy", because such a contract is contrary to the provisions of the Constitution, hereinbefore referred to.
The second form of policy that a mutual insurance company may issue, under the laws of Georgia, is what is commonly termed "non-assessable policy". This policy is a contract whereby the liability of the insured is limited to a cash premium, with no contingent or future liability.
Before mutual insurance companies may issue this kind of policy, they are required to meet further conditions as are expressed in the foregoing code section; they must have a surplus of at least one hundred thousand dollars, or a surplus which is not less in amount than the 'company stock required of certain domestic stock insurance companies. It therefore appears that the State, or a division thE:reof, may enter into a contract with a mutual company to insure its property, when the contract fixes the liability of the State, or a division thereof, as a sole cash premium and provides against any future or contingent liability. Before the State or any division thereof can enter into such a contract, however, it is necessary for the company issuing the policy to comply with Code Section 56-1417, which is as follows:
"The maximum premiums payable by any member shall be E:xpressed in the policy, or in the application for the insurance. Such maximum premium may be; a cash premium and an additional contingent premium not less than the cash premium, or may be solely a cash premium ..."
The contract should contain a provision relieving the State or any division thereof of any liability, as provided for against members in Code Section 56-1405. If, in any way, the State, or any division thereof, taking insurance in such mutual insurance company assumes any future liability, the contract could not be binding upon the State or the division of the State taking the policy, because such a contract is forbidden by law. In this connection, I refer to Pink, Supt. v. Triple A Highway Express, 191 Ga. 502 (5).
It has recently been held in Florida, in Texas, and in North Carolina that school boards and public bodies having the duty of insuring school property, may do so in a mutual company, where thE: policies are made non-assessable. I refer to the case of Fuller v. Lockhart, 209 N. C. 61.
The Attorney General of Florida has ruled that public school buildings may be insured in a mutual fire insurance company, when the policy of insurance does not make provision for the assessment of the members of such mutual company, or for a division of the profits of such members.
I am of the opinion that public property cannot be insured by mutual insurance companies, and that such contracts are unauthorized where there is any contingent liability assumed or agreed to be paid by the State or any of the divisions thereof, or where the State or any division thereof insuring such property would, because of such contract, become members of the association or incorporation by sharing in the profits or losses, as the case may be.
I hope that thE: authorities cited above sufficiently answer the question propounded in your letter.

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INSURANCE-Reciprocal A reciprocal or inter-insurance exchange may operate within the State.
August 25, 1947 Hon. Zach D. Cravey Insurance Commissioner
You request in your letter of August 12 an official oprmon as to whether or not reciprocal or inter-insurance exchanges would be authoriz(;d to organize and operate under the laws of this State.
I have carefully checked the statutes dealing directly and indirectly with the insurance laws of this State, and I find no statutes which expressly prohibit or allow the operation; that is to say, expr(;ssly provides for, the operation of this type of organization.
In my opinion, a reciprocal or inter-insurance exchange can legally operate within the State, provided the organization complies with the laws of Georgia relative to insurance companies of a similar nature operating a similar type of insurance business. There is no question but that the insurance laws of this State apply to organizations of this type onc(; they are granted permission to do business.
As a matter of suggestion, I think it advisable to bring this matter to the attention of the Legislature at its next session and seek legislation dealing with organizations of this type as a matter of protection to all parties concerned.
INSURANCE-Retaliatory Tax A foreign insurance company required under the retaliatory tax law to pay a gross premium tax equal to that imposed by its home state, which is exclusive of all other taxes in such state, is not entitled to a refund for license and other taxes paid to Georgia municipalities and the State.
March 5, 1946 Hon. M. E. Thompson State Revenue Commissioner
I have yours of February 18th in which you request an opinion relative to the following stat(;ment, which I quote from your letter:
"Where a foreign insurance company is required to pay additional premium taxes to this State under the provisions of 56-315 of the Georgia Code, known as the Retaliatory Law, is it entitled to credit against such additional premium taxes in the amount of license taxes and other taxes paid to Georgia municipalities and the State for the privilege of carrying on its insurance business?
"If so, am I authorized to refund to any such company the amount for which it was entitltd to credit in the payment of retaliatory premium taxes.
"The facts are that a certain Texas Company does business in this State and was required to pay additional gross premium taxes at the rate of 2.55 '/o, under 56-315 of the Code, by virtue of the fact that the gross premium tax required of all insurance companies doing business in Texas was 4.05 Cfo, while the gross premium tax required by the Georgia law at the time was 1.50 o/o. The Texas premium tax, however, is (;Xclusive and no other tax is required of insurance companies doing business in Texas, or may be collected by any city, town, municipality or county in the State or by the State. It is

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contended by the Texas company that in view of the fact that it has to pay premium taxes and other license and privilege taxes to the StatE: and to municipalities in the State, it is entitled to credit the amount so paid against the additional gross premium taxes required of it under the Retaliatory Law."
Code Section 56-315 (repealed in 1945) reads as follows: "56-315. Deposits by forE:ign companies or agents when amount required of companies of this State by foreign State greater than imposed by this State.-\Vhenever the laws of any other State shall require of insurance companies chartered by this State and having agencies in such other State, or of the agents thereof, any deposit of securities in such State for thE: protection of policyholders or otherwise, or any payment of penalties, certificates of authority, license fees, or otherwise, greater than the amounts requirE:d for such purposes from similar companies of other States by the then existing laws of this State, all companies of such States establishing or having theretofore established an agency or agencies in this State shall make the same deposit for a like purpose with thE: Insurance Commissioner of this State and pay to said Commissioner, for penalties, certificates of authority, license fees, or otherwise, an amount equal to the amount of such charges imposed by the laws of such State upon companies of this State and agents thereof." It will be noted that this section is a retalia'tory, a punitive statute, and as such should be construed strictly. We quote the following from the opinion of my predecessor, thE: Hon. T. Grady Head, now Judge of the Supreme Court, in an opinion dated October 20, 1943, relative to this section:
"It is my opinion that the so called retaliatory statute codified as Section 56-315 comprehends the gross premium charges embraced in Code Section 92-2509 so that if the statutes of another State require the payment of a higher rate of gross premium charge than thE: Georgia statute, then, in that event, the State of Georgia is entitled to collect from insurance companies organized and existing under the laws of such other State and licensed to do business in this State, an amount of gross premium charge to equal the higher rate charged by the other State. Accordingly, your question is answHed in the affirmative."
The case of Goldsmith, Comptroller-General v. The Home Insurance Company, 62 Ga. 379, construed a statute similar to 56-315. We quote the following from the opinion on pages 382, 383 and 384:
"Some of the states required a license tax to bE: paid as a condition precedent to a foreign company doing business therein. Whatever was required by the laws of any one state, either the payment of a specified tax, penalty, license fee, certificate of authority, or otherwise, to enable foreign companies to do businE:ss in that state, greater than the amounts required by the existing laws of this state, then the companies of such state seeking to do business in this state, should be required to pay such tax, penalty, license fees, obtain such certificate of authority, or otherwise, as was required by the laws of the state in which said company was located. In other words, whatever burdens were imposed by the laws of any one state upon a Georgia insurance company sE:eking to do business in that state, the same burdens should be imposed on the insurance companies of that state to enable them to do business in this state. The object and intention of the act of 1869, was to prescribe the terms upon which foreign insurance companies might do business in this state, and not to assess a tax upon said companies to raise revenue for the

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support of the government of this state. . . . The comptroller-general derives his power and authority to assess and collect taxes, and to issue executions therefor, under the general tax laws of the state, and not as the agent of the state to superintend the regulation of insurance agencies in this state under the provisions of the act of 1869. When foreign insurance companies have been admitted to do business in this state in accordance with the laws thereof, the duty of the comptroller-general, as the tax collecting agent of the state, will be best performed when he shall proceed to assess and collect from such companies the tax imposed on them by the general assembly of the state in the enactment of its general tax laws, and no more. . . ."
From the foregoing it appears that Code Section 56-315 is constitutional and that the retaliatory tax specified therein is a legal tax. It also appears from the opinion of the Attorney General, above quoted, that it is the duty of the Comptroller-General to collect this retaliatory tax. We, therefore, reach the conclusion that the collection of this tax by the Comptroller-General was neither erroneous nor illegal.
Therefore, answering your question as to whether you are authorized to make the refund described in your question: Under the Reorganization Act of 1937-38, as amended by Ga. Laws 1945, p. 272 et seq., before you are authorized to make any refund of taxes or licenses there must first have been "an erroneous or illegal collection." Such appearing not to be the case, you would not be authorized to make such refund.
INTOXICATING LIQUORS-Alcoholic Beverages (Unofficial)
(1) A petition to call a special election on the question of permitting the sale of alcoholic beverages and liquors must be signed by 35% of the registered voters qualified to vote at the general election immediately preceding the presentation of the petition. (2) The off-year election is a general election.'~
July 23, 1946 Hon. C. A. Strickland, Ordinary Screven County Sylvania, Georgia
Your letter of July 19th received. You request that I advise whether or not voters now qualified to vote, as shown on the 1946 voters' list, could be counted upon a petition required to contain 35 per cent. of the registered voters for the purpose of calling an election to determine. whether or not the sale of liquors should be permitted or prohibited in a county.
Section 58-1003 of the 1945 Supplement to the Annotated Code (Ga. L. 1937-38, Ex. Sess., pp. 103-105) provides as follows:
"Upon a petition, signed by at least 35 per cenc. of the registered voters, qualified to vote at the general election immediately preceding the presenta-
*The Act of 1943, p. 535, required constitutional amendments proposed since the last November general election, and preceding the August general election, to be submitted to the voters at the August general election. The 1945 Constitution, Art. 13, Sec. 1, Par. 1, provides for proposed amendments to be submitted to the voters at the next general election "at which election members of the General Assembly are chosen." However, the August general election apparently was not abolished as it had other purposes in addition to the submission of proposed constitutional amendments.

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tion of the petition, being filed with the ordinary of any county, he shall call a special election to be held within 30 days from the filing of such petition, and shall publish the notice of the call of the election, in the official gazette of the county once a week for two weeks preceding the election." (Emphasis supplied).
You will note from the above quoted Code Section that the petition must be signod by 35 per cent. of the registered voters who were qualified to vote at the general election held immediately preceding the presentation of the petition. The last general election, and the one held immediately preceding this date, was the general election held August 5, 1945, for the purpose of ratifying or rejecting the Constitution. The 35 p!or cent. of the registered voters signing a petition at this time must be 35 per cent. of the persons qualified to vote at the general election held August 5, 1945. Voters who may be qualified at the present time but who were not qualified to vote at the general election held August 5, 1945, would not be eligible to sign the petition and should not be counted in the determination of whether or not 35 per cent. of the registered voters had signed the petition.
If 35 per cent. of the registtred voters qualified for the general election of 1945 sign a petition the ordinary is required to call the election and after the election is called all persons now qualified to vote would be eligible to vote on the issue as provided for in Section 58-1004 of the 1945 Cumulative Pocket Part of the Code, which provides as follows:
"At such special election there shall be submitted to the voters of the county who are qualified to vote for members of the General Assembly the question of whether the manufacture, sale, and distribution of alcoholic beverages and liquors in the county shall be permitted or prohibited."
In my wire of July 19th the fact that the General Assembly had established an off-year general election was overlooked. The General Assembly of 1943 provided for the August gentral election in addition to the November general election. See Section 34-1404 of the 1945 Cumulative Pocket Part of the Annotated Code. (Ga. L. 1943, p. 535).
INTOXICATING LIQUORS-Aboholic Beverages (1) A person in possession of untaxed liquor in a wet county is not relieved of the State tax thereon by its seizure as contraband and by criminal prosecution. (2) A tax may be assossed and collected on untaxed liquor which the State can prove a person has previously sold. (3) A person in possession of untaxed liquor in a dry county is not subject to the payment of a State tax thereon but may be criminally prosecuted and the liquor seized as contraband.
July 2, 1947 Hon. Glenn S. Phillips State Revenue Commissioner
I am pleased to acknowledge your recent letter in which you ask the following questions:
"1. The agents of the Alcohol Control Unit frequently seize liquor in a wet county found in possession of a bootlogger, and on which liquor no Georgia tax has been paid. Some of this liquor appears to be moonshine, and some bear

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stamps of another state. It can be shown that this bootlegger has been selling such tax unpaid liquor for a considerable period of time.
"(a) Do I have the authority to assess taxes against this bootlegger on the tax unpaid liquor found in his possession in addition to seizing it as contraband?
"(b) Do I have the authority to assess taxes on the liquor which we can show that he has previously sold?
"2. Would there be any difference if this occurred in a dry county?" In answer to question 1 (a), I call your attention to Sections 58-1046 and 58-1071 of the Supplement to the Code as follows: "58-1046. There shall be levied and collected, on all distilled spirits imported into this State a tax of $1 per wine gallon; and on all alcohol imported into this State a tax of $2 per wine gallon; and a proportionate tax at like rates on all fractional parts of a gallon. There shall be levied and collected on all distilled spirits, manufactured in this State from Georgia grown products, a tax of 50 cents per wine gallon; and on all alcohol manufactured in this State not from Georgia grown products, a tax of $1 per wine gallon; and a proportionate tax at like rates on all fractional parts of a gallon." "58-1071. There shall be no exception from the permit fees, license fees, and/or tax as provided by this Chapter in favor of any person whatsoever." From the foregoing provisions of law, I am of the opinion that a person in possession of illicit liquor is subject to the payment of the tax as required by the above statute. To hold otherwise would be placing a premium on law violations and result in relieving the bootlegger of the payment of a tax which all legitimate operators are required to pay. The above statute clearly states "there shall be no exception from the ... tax as provided by this Chapter in favor of any person whatsoever," and this necessarily applies to a bootlegger who is apprehended with untaxed liquor in his possession.
1\Iy answer to question 1 (b) is that you are authorized to assess and collect taxes on bootleg liquor when it can be established by competent evidence the amount of illicit liquor previously sold by the bootlegger. Of course the burden would rest upon the State to show how much untaxed liquor had been sold and the proper amount of tax due thereon. The mere fact that liquor is sold in an illegal manner so as to make it contraband under the law, does not relieve the bootlegger from the payment of proper taxes due the State thereon. In this connection, see Pierce v. The State, 200 Ga. 384, at p. 385, where the Court in dealing with the Revenue Tax Act to Legalize and Control Alcoholic Beverages stated:
"The purpose of the penal provision of this section of the act was to prevent a defeat of the State's right to collect its tax on distilled spirits and alcohol imported into the State or manufactured in the State, and the possession of whiskey in any county of the State in a container which does not have affixed thereon the necessary tax stamp is by the terms of the act made a penal offense punishable as a misdemeanor."
The above decision illustrates the rule that because the offender or law violator is guilty of a criminal offense, the same should not defeat the right of the State to collect its tax on the illicit liquor imported or manufactured in the State. The same reasoning would apply with equal force to liquor which was seized under the law as contraband. The seizure of the liquor would not defeat the State's right to the collection of a proper excise tax thereon, pro-

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vided you had sufficient evidence to show the amount of tax due the State. Your second question is whether or not you can collect the tax on con-
traband or illegal liquor found in a dry county. Section 58-1002 of the Supplement to the Code provides:
"The licE:nse hereinafter provided for and the tax levied on the manufacture, sale, and distribution of distilled spirits and alcohol, as authorized by this Chapter, is authorized only in those counties in which a majority of those voting at an election, to be held for the purpose, vote in favor of taxing and controlling alcoholic beverages and liquors as hereinafter provided for."
It is the purpose of the above statute to prohibit the collection of a license or tax levied on the manufacturE:, sale and distribution of distilled spirits and alcohol as authorized by this law in those counties which have not voted in favor of taxing and controlling alcoholic beverages and liquors. Section 58-1046, supra, levies a tax on liquors imported or manufactured in this State. This has been held to be an excise tax rather than a tax against the property itself. See, Scott v. The State, 187 Ga. 702. An excise tax is sometimes referred to as a "privilege tax."
It is an elementary principle of statutory construction that all tax laws are to be construed against the government and in favor of the taxpayer whenever there is any doubt as to the intention of the Legislature in levying the tax. See, Mcintyre v. Harrison, 172 Ga. 65, and Vincent v. Poole, 181 Ga. 718. It would therefore follow that the language of the above statute should not be extended by implication to cover the collection of a tax on liquor found in dry counties. Of course such liquor is subject to seizure as contraband, and the offender may be punished under the criminal law. See, Section 58-1056 of the Supplement to the Code.
In summarizing my ruling in this case, I am of the opinion that any person who illegally possesses non-tax paid liquor in a wet county is (a) subject to have the illicit liquor seized as contraband; (b) subject to the payment of a tax thereon as set forth in Section 58-1046, supra, and (c) subject to criminal punishment as provided for by law. The infliction of any one of these penalties by the State does not bar a proceeding for the exaction of the othE:r two punishments. A bootlegger found with illegal liquor in a wet county is subject to all three of these penalties.
On the other hand, a bootlegger found with the illegal possession of liquor in a dry county, is subject to criminal prosecution and also subject to have: the liquor seized as contraband. He would not be subject to the payment of taxes thereon since the tax act to legalize and control alcoholic beverages and liquors does not authorize the collection of such taxes in dry counties.
INTOXICATING LIQUORS-Alcoholic Beverages (Unofficial) A parked car containing alcoholic liquors may not bE: condemned in the
absence of evidence that it was used to transport the same in violation of the statute.
September 10, 1947 Hon. Hartwell L. Williams Solicitor, City Court of Baxley Baxley, Georgia
I have your letter of August 29, in which you ask for my opmron on the condemnation proceeding which you have filed against an automobile under

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the provisions of Code Section 58-207. As I understand it, the automobile was found parked, unoccupied, on a highway in front of a place of business, with two cases of bonded, stamp paid liquor inside. The car was not in motion, and you have no witnesses who saw it in motion. The owner claims the car, but denies that the car was ever used for the transportation of the liquor.
The case of Thompson v. State of Ga. et al, 52 Ga. App. 355 seems to be analogous to the instant factual situation. In that case, the court said:
"Where in such a condemnation proceeding the only evidence as to any actual use of the automobile to convey alcoholic liquors was that it was standing still in a private way near a residence where forty-two gallons of whisky were seized and two gallons of whisky were taken from the car, and that a person \vas seen 'approaching' the car with another gallon of whisky, giving the effect to the only witness that 'she was taking more to the car,' this evidence being equally if not more indicative that the automobile was merely being prepared for use to transport the liquor than that it had been so used, the State did not meet the burden of showing that the statute had been violated."
See also Leath v. Rosser, 52 Ga. App. 587, and Armington & Sons v. State of Ga., 24 Ga. App. 75.
In the latter two cases, there was some question as to whether the vehicles were on highways or private ways, but the ruling of the court is consistent with the Thompson case quoted above.
You will have the burden of proving the knowledge of the owner in the condemnation proceeding.
See Lang v. Hitt, 149 Ga. 667 Headnote 2-"Knowledge of the owner or lessee that prohibited liquors were being transported in the automobile is a question of fact, as a prerequisite to the right to condemn the automobile in a proceeding instituted for that purpose against the owner or lessee thereof. Such knowledge may be shown by circumstantial as well as direct evidence." See also Seminole Securities Co. v. State of Ga., 35 Ga. App. 723, and Jackson v. Troup County, 70 Ga. App. 59. From the authorities above quoted, the outlook does not seem to be too favorable for the success of your condemnation proceeding unless additional evidence can be procured.

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INTOXICATING LIQUORS-Alcoholic Beverages; Malt Beverages; Wine (1) Code Sec. 58-106 prohibiting the sale of spirituous, alcoholic or malt liquors, within three miles of any church or schoolhouse is suspended by the 1935 Malt Beverage Act in those counties properly operating under its provisions and by the 1938 Alcoholic Beverage and Liquor Control Act in those counties properly operating under its provisions. (2) Beer and wine may not be sold within 100 yards of any school or school house. (3) Alcoholic beverages may not be sold within 100 yards of any church, school ground or college campus. (4) No liquor store licensed under the 1938 Alcoholic Beverage and Liquor Control Act may be operated within 100 yards of a church or 200 yards of a school ground or college campus.
December 11, 1947 Hon. M. E. Thompson Acting Governor
This will acknowledge your letter of December 4, in which you ask my opinion upon the questions propounded in a communication to you from Mr. Norman M. Lovein, Executive Secretary of the Georgia Temperance League in which he states:
"My attention has been recently called to an old law passed by the Legislature of 1890-91, pp. 132-133, which reads as follows:
"'Any person who shall offer to sell any spirituous, alcoholic or malt liquors, in any quantity, within a radius of three miles of any church, or public or private schoolhouse shall be guilty of a misdemeanor; provided however, that the provisions of this section shall not apply to any incorporated town or city in this state'. Code Section 58-106 (435 Penal Code)
"Competent counsel advises us that this law is still in effect and that it applies to beer and wine as well as hard liquor. The Georgia Temperance League respectfully requests that you investigate this matt~:;r and if the law is still in effect, as we believe it to be, that you issue an Executive order or take such other steps as are necessary to have all licenses within this forbidden area revoked."
The Act of August 11, 1891 (Ga. L. 1890-91, pp. 132-133), now codified in part under Code Section 58-106 of the Annotated 1933 Code of Georgia, as originally passed by the Legislature reads as follows:
"Section I. Be it enacted by the General Assembly of the State of Georgia, That from and after the passage of this Act, it shall be unlawful for any person or persons to sell, vend, or offer to sell or v~:;nd, any spirituous, alcoholic or malt liquors, in any quantities, within a radius of three miles of any church or public or private school-house in the State of Georgia; provided, that the provisions of this Act shall not apply to any incorporated town or city in this State.
"Sec. II. Be it further enacted. That any person or persons who shall violate the provisions of this Act shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished as prescribed in section 4310 of the Code of Georgia, of 1882; provided, that the provisions of this Act shall not apply to any person or persons now selling liquors under a license, until such license shall have expired; provided further, that nothing in this Act shall be construed to prohibit the sale of domestic wines; provided further, that nothing

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herein contained shall prohibit or interfere with regular practicing physicians of said State from dispensing alcoholic stimulants for medical uses in their practice."
On October 17, 1891 (Ga. L. 1890-91, pp. 133-134) the Legislature amended Section I of the above stated statute by adding a further proviso that it did not apply to the sale of the defined liquors in original packages, of not less than forty gallons, by the manufacturer thertof to legally authorized dealers, and the said section as thus amended reads as follows:
"Section I. Be it enacted by the General Assembly of Georgia, That the first section of the above recited Act be, and the same is, hereby amended by adding the following proviso to the end of said section, to-wit: provided furthtr, that this Act shall not apply to the sale of such liquors in original packages, of not less than forty gallons, by the manufacturer thereof, to legally authorized dealers, so that said section, when amended, shall read as follows, to-wit:
"Section I. Be it enacted by the General Assembly of the State of Georgia, That from and after the passage of this Act, it shall be unlawful for any person or persons to sell, vend, or offer to sell or vend, any spirituous, alcoholic, or malt liquors, in any quantitits, within a radius of three miles of any church or public or private school-house in the state of Georgia; provided, that th: provisions of this Act shall not apply to any incorporated town or city in this State; provided further, that this Act shall not apply to the sale of such liquors in original packages, of not less than forty gallons, by the manufacturer thereof to legally authorized dealers."
The illustrious and distinguished late Chief Judge Btnjamin Harvey Hill of the Georgia Court of Appeals, in reviewing a legislative Act, referred to an expression by Plowden in his Commentaries, which is as follows:
"It is not the words of the law, but the internal sense of it, that makes the law; and our law consists of two parts, viz., of body and soul; the letter of the Jaw is the body of the law, and the sense and reason of the law are the soul of the law, quia ratio legis est anima logis. And the law may bt resembled to a nut, which has a shell and a kernel within: the letter of the law represents the shell, and the sense of it the kernel; and as you will be no better for the nut if you make use only of the shell, so you will receive no benefit from the law if you rely upon the letttr; and as the fruit and profit of the nut lie in the kernel and not in the shell, so the fruit and profit of the law consist in the sense more than in the letter. And it often happens, that when you know the letter, you know not the sense, for sometimes the sense is more confined and contracted than the letter, and sometimes it is more largt and extensive."
The fact that this old law (now Code Section 58-106) was enacted in 1891, some forty-four to forty-six years before the present general laws known as the "Malt Beverage Act" of 1935 which was amended in 1937, and the 1937-38 "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" was enacted, must be kept in mind in determining if this old law is now in full force and effect, or has been repealed, modified, or suspended, in whole or in part.
The object to be accomplished by the enactment of these later statutes also must bt kept in mind.
To determine this question it first becomes necessary to review certain provisions of the above later laws covering the same field and subject matter as the old law.

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Since incorporated towns and cities are excluded from the operation of the statute, (Ga. L. 1890-91; Code 58-601), in question, it is unnecessary to refer to them in considering the later laws.
By the "Malt Beverage Act" of 1935 (Ga. L. 1935, p. 73), which is a sub-
sequent law to Section 58-601 (Ga. L. 1890-91), the selling, manufacture, dis-
tributing, or otherwise dealing in Malt Beverages, as definEd in said Act, is legalized and permitted throughout the State upon a compliance \vith the provisions therein contained. The definition of Malt Beverages contained in Section 4 of said Act is codified in the 1933 Annotated Code of Georgia under the following section:
"Section 58-704. Definitions; Malt Beverages.-Malt beverages shall be defined to mean fermented beverages made whole or in part from malt, or any similar fermenttd beverages. But no such malt beverages shall be sold under the provisions of this chapter which contains more than six per cent alcohol by volume."
Section 7 of said Act specifically provides that the governing authorities of the counties of the State shall grant in the first instance the privilege of manufacturing, distributing, and sale by wholesale or retail of the malt beverages as above defined, and is codified under the following section of the 1933 Annotated Code:
"Section 58-718. Discretion as to Grant of Permits.-The privilege of manufacturing, distributing and sale by wholesale or retail of beverages provided in this Chapter is purely a privilege and no business legalized by this Chapter shall be conducted in any county or incorporated municipality of this State without a permit from the governing authority of such county or municipality, which said authority is hereby given discretionary powers as to the granting or refusal of such permits."
Section 15B of said Act prohibited the sale of Alcoholic Beverages of any kind upon any school ground or college campus or within 100 yards of such ground or campus and provides as follows:
"Sec. 15B. No alcoholic beverage of any kind shall bt:o sold upon any school ground or college campus, nor within 100 yards of such ground or campus. Violation of this paragraph shall be a misdemeanor."
The constitutionality of Section 15B of the 1935 Malt Beverage Act, containing the above quoted provision, was attacked in the case of McCaffrey v. The State, 183 Ga. 827, in which the supreme Court of Georgia on February 11, 1937 held said section to be unconstitutional as not being comprehended within the title of the 1935 Malt Beverage Act. The Court said:
"Not all alcoholic beverages are comprehended in the descriptive term 'Malt beverages'. Consequently, where the body of an act provides that 'no alcoholic beverage of any kind shall be sold upon any school ground or college campus, nor within 100 yards of such ground or campus', and that a 'violation of this paragraph shall be a misdemeanor', and the title or caption is 'an act to provide for license and excise taxes upon the business of dealing in malt beverages; to allocate funds from such taxes; to provide for the enforcement of this act; to repeal laws in conflict with this act; and to provide for the holding of an election to ratify or reject this act; and for other purposes' (Ga. L. 1935, pp. 73, 90), it contains matter different from that what is expressed in its title."
"The body of a penal statute, when broader in its terms than the title warrants, cannot be so narrowed by construction as to make the statute good for

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what is embraced within the title, unless the result thus arrived at will correspond with the real legislative intention. Thus, where the title of an act embraces 'malt beverages' only, and the body extE>nds to 'alcoholic beverages of any kind,' and prohibits the sale thereof on any school ground or college campus or within 100 yards thereof, it cannot be held that the legislature intended to so prohibit the sale of only one kind; to wit malt beverages."
The Act of the Legislature of 1937 (Ga. L. 1937, p. 151, Section 2) approved on March 30, 1937, attempted to amend Section 15B of the 1935 Malt Beverage Act by adding a sentence defining the school ground or college campus to which the said section was intended to refer. This amending provision was as follows:
"Section 2.-That Section 15B of said Act be amended by adding at the end thereof the following words: 'The school grounds or collE>ge campus referred to in this paragraph shall apply only to State, county, city or church school ground or campus, and such other schools as teach the subjects usually taught in the common schools of the State of Georgia; and the one hundred (100) yards mentioned in said paragraph shall be construed to mean by the nearest traveled road, street or highway,' " so that said section shall read, as amended:
"No alcoholic beverage of any kind shall be sold upon any church, school ground or collegE> campus or within one hundred (100) yards of such ground or campus. The school ground or college campus referred to in this paragraph shall apply only to State, county, city, or church school ground campus, and to such other schools as teach the subjects commonly taught in the common schools of this State. Any violation of the section shall be a misdemeanor."
It will be noted that the above 1937 (Ga. L. 1937, p. 151) amending Act provides that Section 15B is to be amended by adding at the end of Section 15B the above stated words of the first paragraph of Section 2 so that said Section 15B would read as amended as provided in the second paragraph. Was there anything to amend? The Supreme Court of Georgia on February 11, 1937 declared that Section 15B was unconstitutional and therefore void. This action of the Supreme Court was almost two months before the Legislature passed the amending Act attempting to amend something which did not in fact exist. It is academic that something that does not exist cannot be amended.
If the 1937 (Ga. L. 1937, p. 151) amending Act was intended to reenact Section 15B, which had been dE>clared unconstitutional, it would be subject to the same objection which the Supreme Court pointed out in the case of McCaffrey v. The State, 185 Ga. 829, in that it contained the identical provision passed upon in said case.
However, this 1937 (Ga. L. 1937, p. 151) amending Act to the 1935 Malt Beverage Act, as it applies to Section 15B of the 1935 Malt Beverage Act, has not been passed upon by the Courts of our State and, thHefore, is presumed to be valid, and of full force and effect today.
In the case of Plemmons v. State, 58 Ga. App, 133, the Court of Appeals of Georgia on November 2, 1937 held:
"Under the Act of 1935 (Ga. L. 1935, p. 73), the sale of malted or fermented beverages, commonly known as beer, is not unlawful where the provisions of that Act have bE>en complied with."
The Court in discussing the case further said: "Prior to the Acts of 1935 (Ga. L. 1935, p. 73), and the Acts of 1937

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(Ga. L. 1937, p. 547), it was a violation of the law of this State to sell beer or malt beverages. This part of our liquor law was expressly repealed by the act of 1936, and under that Act it only becomes a crime to sell such beverages when there is a failure to comply with certain provisos therein contained."
What was the proviso contained in the 1935 Malt Beverage Act in regard to the sale of said malt beverages in the vicinity of any church, school ground or college campus at the time of the above decision of the Court of Appeals? There was none if the Act of 1937 (Ga. L. 1937, p. 151) was successfully attacked on proper constitutional grounds, and that it attempts to amend a section (15B) of the 1935 Malt Beverage Act, which did not exist, since the Supreme Court had declared on February 11, 1937 that Section 15B of said Act was unconstitutional and void, and the Act of the Legislature of March 30, 1937 would not apply since it could not reenact and amend the same provision, it not being comprehended within the title of the 1935 Malt Beverage Act.
The General Assembly in 1945 (Ga. L. 1945, p. 447) enacted the following law prohibiting the sale of wine or beer at a distance of one hundred (100) yards of any school building or school house in the State:
"An Act to prohibit the sale of wine or beer at a distance of one hundred yards of any school building or school house in this State, to repeal conflicting laws and for other purposes.
Be it enacted by the General Assembly of Georgia and it is hereby enacted as follows, to-wit:
Section 1. That it shall be illegal for any person to sell either beer or wine at a place within one hundred yards of any school or school house in this State.
Section 2. Any person violating the provisions of this act shall be guilty of a misdemeanor and punished as provided in the Code of Georgia in misdemeanor cases.
Section 3. All Jaws and parts of laws in conflict with this act be and the same are hereby repealed.
Approved March 9, 1945." Why did the General Assembly in 1945 enact the above General laws which is not an amendment to the Malt Beverage Act of 1935? It is reasonable to assume that it acted in view of the above quoted decisions of the Supreme Court and the Court of Appeals, and knowledge of its own action in failing to properly amend the 1935 "Malt Beverage Act," which if successfully attacked in the Courts would leave the State without any law prohibiting the sale of malt beverages in close proximity to churches and schools of the State in the counties allowing the sale of malt beverages as defined in the Malt Beverage Act of 1935 under the provisions thereof.
It is also reasonable to assume that the Legislature reached the conclusion that Section 58-601 of the Code (Ga. L. 1890-91) which refers to "Spirituous, Alcohol>:, or Malt Liquors" did not apply to the sale of malt beverages as defined in the "Malt Beverage Act" of 1935 as amended.
The word "Church" was omitted in the 1945 Act (Ga. L. 1945, p. 447) above quoted for some unknown reason. It was not contained in the original Section 15B of the 1935 "Malt Beverage Act" (Ga. L. 1935, p. 80). It did appear in the 1937 amendment (Ga. L. 1937, p. 151) to Section 15B above discussed.
From a review of the pertinent provisions of the 1935 "Malt Beverage Act"

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as amended, it must necessarily be concluded that it was the intention of the Legislature to legalize among other things the sale of Malt Beverages defined in said Act in those counties of the State that desired to come within the provisions theoreof. It is a general law of the State and applicable throughout the State by a compliance with its provisions. It has a proper repealing clause in the body and caption, repealing all laws and parts of laws in conflict thereof.
There can be no doubt that the "Malt Beverage Act" of 1935 as amended, is the last expression of the Legislature on the subject matter contained therein, except the 1945 Act (Ga. L. 1945, p. 447.)
A careful reading of the Act of 1890-91 (Code 58-601) refers to "Spirituous, Alcoholic, or Malt Liquors-" It does not contain any reference to "Malt Beverages."
In the case of Peurifoy v. State, 53 Ga. App. 515, the Court of Appeals of Georgia on June 6, 1936 (after the "Malt Beverage Act" of 1935) said:
"In the definition of term and its common acceptance, "Liquor" is distilled spirits and stronger than Malt Beverages and fermE:nted wines."
In further discussing this case it quoted a charge of a trial court as follows: "I charge you as a matter of law that it is a violation of the laws of this State for anyone to have in his possession, custody, or control any quantity of alcoholic liquors, wines, vinous beverages, or other drinks, if drunk to excess, will produce intoxication." The Court in discussing this charge of the trial court said: "It is to be admitted that this is not a correct statemE;nt of the law, for by the Act of 1935 (Ga. L. 1935, p. 73) the sale of Malt Beverages is permitted, and in the same volume, p. 492 appears a law under which light domestic wines made from Georgia-grown crops may be made and sold." I, therefore, reach the opinion that the Act of 1890-91 (Code 58-601) does not cover the subject .matter contained in the Malt Beverage Act of 1935 as amtnded.
I am of the further opinion that if said Act of 1890-91 (Code 58-601) did cover the subject matter contained in the Malt Beverage Act of 1935 as amended, it would be suspended or modified in those counties which come within the provisions of the Malt Beverage Act of 1935 as amended during the period of time that such counties remained under the provisions of the Malt BeveragE; Act of 1935 as amended.
I am of the further opinion, that the Act of 1945 (Ga. L. 1945, p. 4 77), a general law which prohibits the sale of either beer or wine at a place within one hundred (100) yards of any school, or school house in Georgia is the last expression of the Legislature and is the controlling law on tht subject matter contained in said Act.
I am of the further opinion, that the Act of 1937 (Ga. L. 1937, p. 151), although being of doubtful constitutionality, as pointed out, and which prohibits the sale of alcoholic beverages of any kind upon any church, school ground, or college campus, or within one hundred (100) yards of such ground or campus, is the controlling law on the sale of these enumerated beverages upon any church ground or icollege campus, or within one hundred (100) yards of such church ground or college campus, until said Act is passed upon by the Courts to the contrary.
On February 19, 1946, in an opinion* to you when you were State Revenue
See page 393.

Commissioner, I pointed out that the constitutionality of the Act of 1937 (Ga. L. 1937, p. 151), insofar as it attempts to re(';nact Section 15B of the 1935 Malt Beverage Act, was very doubtful. I also called your attention to the fact that immediately after passage of the 1935 Malt Beverage Act, the State Revenue Department became aware that the Act did not contain a prohibition against the sale of malt bevE;rages as defined in said Act near churches, and that the Department of Revenue immediately adopted a rule and regulation to the following effect:
"Not to license a place nearer than one hundred (100) yards from a church where the facts were known at the time of the making of the application."
I am informed that this rule and regulation has betn followed by the State Revenue Department continuously since its adoption.
It appears that it was the intention of the 1937 amending Act (Ga. L. 1937, p. 151) to attempt to cure this defect.
The Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors was enacted by the General Assembly and approved on February 3, 1938, (Ga. L., Ex. Stss., 1937-38, pp. 103, 111), is a subsequent law to Section 58-601 (Ga. L. 1890-91) and among other things legalized throughout the State the sale, manufacture, and distribution of distilled spirits and alcohol, upon a compliance within its provisions as authorized in said Act. This law covers the same field and subject matter as that of Code Section 58-601 under consideration.
In the case of Bernstein v. Peters et al., 68 Ga. App. 218, the Court of Appeals of Georgia held:
"The act of 1938 (Ga. L., Ex. Sess., 1937-38, p. 103), authorizing the sale of intoxicating liquors in this State under the provisions therein named, was not, properly construed, enacted merely as a revenue mtasure, but was intended as a regulation of such business in the interest of the public."
The Court in discussing this case said:
"Examining the act here involved, we think that the idta of control and regulation of the liquor traffic runs throughout its provisions. In the title itself it is stated that the act is to be known as the 'Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors'; to provide for taxation, legalization, control, manufacture, importation, distribution, sale, and storagE; of alcoholic beverages and liquor; to authorize the Revenue Commissioner to make
rules and regulations * * * for the ''' *' ''' controlling of the manufacture, sale and
distribution of alcoholic beverages and liquor; to provide penalties and punishment for the violation of the terms of this act', etc. Various provisions in the body of the act, which we shall refer to under the code sections appearing in the cumulative pocket part of the Annotated Code, show the plain intention of the Legislature that the enactment was not merely for revenue purposes but aimed at regulation and control of the liquor business in the interest of the public, a business generally recognized as freighted with a peril to the public welfare."
The law taxing, legalizing, and controlling the sale, manufacture, importation, distribution, and storage throughout the State of alcoholic bevtrages and liquors provides that a license to conduct such business is authorized only in those counties of the State in which a majority of those voting at an election, to be held for that purpose, vote in favor of taxing and controlling alcoholic

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beverages and liquor as provided for in the Act, (Code 58-1001). It also contains a provision for calling an election for the purpose of nullifying a previous elE:ction where a majority of the votes of a county are cast in favor of taxing, legalizing, and controlling the sale, manufacture, importation, distribution, and storage of alcoholic beverages and liquors in such county. (Code 58-1010).
It can be readily seen that from the provisions of this general law, legalizing, taxing and controlling the sale, manufacture, importation, distribution and storage of alcoholic beverages and liquors we may have wet and dry counties at the will of its votes as provided in said law. The whole state could become dry by the action of the people of the various counties expressing such a desire pursuant to the provisions of said Act, and at the proper times.
This law contains a section of definitions of "Spiritous Liquors," "Distilled Spirits," and "Alcohol" and is codified in the 1933 Annotated Code as follows:
"Section 58-1001. Definitions.-(a) The words 'Spirituous Liquors' or 'Distilled spirits' means any alcoholic beverage containing alcohol obtained by distillation, mixed with water or other substance in solution, and includes brandy, rum, whiskey, gin, cordials, or other spirituous liquors by whatever name called, to include fortified wines as defined by FE:deral Alcohol Administration, but nothing in this Chapter shall prohibit the sale of wines from natural fermentation of fruits, berries, and other products. (b) The word 'alcohol' means the product of distillation of any liquid, whether rectified or dilated, whatever may be the origin thereof, and shall include synthetic ethyl alcohol."
This 1938 law contains a sale prohibition section providing that no businE:ss licensed (Liquor Store) under the provisions of this law shall be operated within a certain distance of any church or school ground or college campus, and is codified in the pocket supplement of the 1933 Annotated Code as follows:
"58-1029.-No liquor store to be operated near church or school; exceptions.-
"No business licensed under this Chapter shall be operated within 100 yards of any church, and 200 yards of a school ground or college campus, except hotels of 50 rooms or more, which have been in continuous operation for a period of at least fivE: years immediately preceding the passage of this Chapter.
"The restrictions as to location herein contained shall not apply to private social clubs, owning their own homes, which have been chartered and in continuous operation for a period of 25 years prior to the passage of this Chapter.
"The school grounds or college campuses rE:ferred to in this section shall apply only to State, County, City or church school campuses, and to such other schools as teach the subjects commonly taught in the common schools and colleges of this State."
From a review of the pertinent provisions of the 1938 "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" it is reasonable to conclude that the State has a general law that applies throughout the State and among other things legalizes and authorizes the sale of Alcoholic.Beverages and Liquors as defined in said law in the counties of the State upon a compliance with the provisions contained in the said Act, and the rules and regulations promulgated by the State Revenue Commissioner under the provisions granted in said Act.
It is also reasonable to conclude that it was not the purpose of the above mentioned law to rE:peal outright the prohibition laws of our State, but on the other hand, to suspend their operation in the counties of the State desiring

to adopt or comply with the provisions of said law for the period of time that such counties care to remain under the operation of the provisions of said laws.
In the case of Herbert v. State, 60 Ga. App. 633, the Court of Appeals on September 22, 1939 said:
"The prohibition law of Georgia (Code 58-101 et. seq.) remains of force in this state, except as modified, altered, or repealed by the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors (Ga. L., Ex. Sess., 1937-38, pp. 103, 124 (Code 56-1001 et. seq.)."
It is reasonable to reach the conclusion that in those counties which have complied with and adopted the provisions of the above mentionE:d 1938 law, which covers the same field and subject matter as the Act of 1890-91, that section 58-601 (Acts 1890-91) is modified and suspended for the period of time that such counties remain under the operation of the provisions of said 1938 law. If and when such counties nullify their previous action in coming under the operation of said 1938 law, then the Act of 1890-91 (Code 58-601) again bE:comes restored to full force and effect.
The 1938 "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" contains a prohibition against any business (Liquor Store) licensed thereunder from being operated within one hundred (100) yards of any church, and two hundred (200) yards of a school ground or college campus, with certain exceptions applicable to certain hotels and private clubs, and certain definitions of school grounds and college campuses. Code Section 58-1029.
The above mentioned 1938 general law being the last exprE:ssion of the Legislature, and having proper repealing clauses to repeal all laws and parts of law in conflict therewith, there can be no doubt that the provisions of said law, now codified as Section 58-1029, which provides that no business (Liquor Store) licensed undE:r this Chapter (Law) shall be operated within one hundred yards of any church, and two hundred (200) yards of a school ground or college campus, with certain enumerated exceptions, are in direct conflict with the provisions of the old 1890-91 law (Code 58-601), and that the other provisions of the said 1938 Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors are in direct conflict with the provisions of Code Section 58-601 (Acts 1890-91).
It is therefore my opinion that from the very nature of the operation of the above 1938 law legalizing and controlling alcoholic beverages and liquors, that it was not the intent of the LE:gislature to provide for a direct or outright repeal of the old 1890-91 law (Code 58-601), but merely for a suspension or modification of its operation during the period that the 1938 Act to Legalize and Control Alcoholic Beverages and Liquors is in force in a county or counties, and that when such county or counties cease to operate under the provisions of said Act the original law of 1890-91 (Code 58-601) automatically comes back into operation again, without any new legislation on the subject.
I am of the further opinion that in the dry counties where the above stated 1938 law is not in operation as provided in the provisions thereof, that the Law of 1890-91 (Code 58-601) is of full force and effE:ct, as to the subject matter specified therein.
It is my further opinion that Code Section 58-1029, codified from the said 1938 Act, is the controlling law prohibiting any business (Liquor Store) licensed under the 1938 Alcoholic Beverage and Liquor Act from being operated within

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one hundred (100) yards of any church, and two hundred (200) yards of a school ground or college campus. Thtre are certain exceptions and definitions named in said Code Section.
My views, above expressed, in brief are: 1. Act of 1890-91 (Code 58-601) refers to Spirituous, Alcoholic, or Malt Liquors, and therefore does not apply to the Malt Beverages defintd in the 1935 Malt Beverage Act as amended. 2. If it did, is suspended by 1935 Malt Beverage Act as amended in those counties properly operating under its provisions, during such period of time that such counties r6main under its provisions. 3. 1945 Act is last expression of Legislature on Bter and Wine and is controlling on prohibiting the sale of either Beer or Wine within 100 yards of any school or school house. 4. 1937 Act is controlling on prohibiting the sale of alcoholic beverages of any kind upon any church ground or college campus, or within one hundred (100) yards thereof, in those counties properly undtr the provisions of the 1935 Malt Beverage Act as amended. 5. Act of 1890-91 (Code 58-601) is suspended by the 1938 Alcoholic Beverage and Liquor Control Act in those counties properly operating under its provisions, during such period of time that such counties remain under its provisions. 6. In those counties properly under the 1938 Alcoholic Beverage and Liquor Control Act, the provisions of Code Section 58-1029 is controlling in prohibiting a business (Liquor Store) licensed under said 1938 Act from operating within 100 yards of any Church, or 200 yards of a School ground or College Campus. 7. The Act of 1890-91 (Code 58-601) is of force and effect in those counties not under the Alcoholic Beverage and Liquor Control Act of 1938, subject to above paragraphs 1, 2, 3, and 4. This summary is subject to the exceptions and definitions contained in Code Sections 58-1029; 58-724.
INTOXICATING LIQUORS-Drunkenness (Unofficial) (1) An indictment for public intoxication must specify the producing agent. (2) Curtilage includes any building or area within the enclosure or indispensably necessary to the domestic comfort of the household in the occupancy of the dwelling. (3) A store or pool room may be a place of public gathering or assembly. (4) An arrest without a warrant may be made for an offense committed in the presence of the arresting officer.
April 19, 1946. Hon. Ted McTyre, Sheriff Paulding County Dallas, Georgia
You request information as to what constitutes a public place so far as the State statute on drunkenness is concerned. I believe you were particularly interested in whether a pool room, or a store, could be so considtred, and also as to the circumstances under which an arrest could be made for drunkenness without a warrant.

3\H
The Code. Section in which you are particularly intE:rested is Number 58608, and reads as follows:
"Any person who shall be and appear in an intoxicated condition on any public street or highway, or within the curtilage of any private residence not in the exclusive possession of the person or persons so intoxicated, or upon any steamboat engagE:d at the time in carrying passengers, or upon any railway passenger train, or at or on any fair grounds, ball grounds, show grounds, park, or at any other place of public gathering or assembly, which said drunkenness or intoxication may be caused by the excessive use of intoxicating wines, beers, liquors, or opiates, and must be made manifest by boisterousness, or by indecent condition or acting, or by vulgar, profane or unbecoming language, or loud and violent discoursE: of the person or persons so intoxicated or drunken, shall be guilty of a misdemeanor. This section shall not be construed to affect the powers delegated to municipal corporations to pass laws to punish drunkenness or disorderly conduct within their corporate limits. The words 'public street or highway' used in this section are intended to include and shall be construed to mean any public or private street, road or private way generally used and traveled by the public or by the community whtre said street, road or private way is located."
There are several points of interest in this section. One is that an indictment must specify the agent producing the intoxication as being wine, beer, liquor, or opiates, and if the agent is not proven, the case fails, (Hutchinson v. The State, 46 Ga. App. 219), or if the indictment is in the language of the Code and namE:s all four of the agents named in the section, it must be proven which one, or more, produced the intoxication.
Another point is that the place where the drunkenness occurred must be one of those specified in the Code Section. Most of them admit of only one interpretation, the language being plain and unambiguous. But "within the curtilage of any private residence not in the exclusive possession of the person or persons so intoxicated," and "any othE:r place of public gathering or assembly," may call for explanation.
l\Iost of the interpretations of the word "curtilage" have been made in connection with a burglary offense. In Hutchins v. The State, 3 Ga. App. 303, there is a very thorough discussion of the word and its present meaning. The Court there points out that the word originally had reference to an enclosure within which werE: the mansion, or dwelling house, and possibly other buildings under the protection of the house. It has been held that a store attached to a residence was within the curtilage and an Alabama case has held that "Curtilage includes the yard, garden, or field which is near to and used in connection with the dwelling." However, the Court, in the Hutchins case, held that a fence or enclosure was not necessary to establish a certain building was within the curtilag~:;, but
"to supply the place of an enclosure, there must be apparent a necessity for the use of the outhouse alleged to be within the curtilage, either as a part of the dwelling-house, or that the use of such outhouse is indispensably necessary to the domestic comfort of the household in the occupancy of the dwE:Iling."
In the case of Haines v. The State, 8 Ga. App. 627 (4), the Court held,
"To appear in an intoxicated condition in any portion of the area enclosed by the curtilage, whether the same be within or without the dwelling-house, is a violation of this statute."

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It was held in the same casE: that it is the jury's province to determine what it takes to make boisterousness or indecent conduct or acting, or vulgar, profane, or unbecoming language, or loud and violent discourse, and also, to determine from the evidence whether or not the defendant was intoxicated. Further, in the case of Ford v. The State, 10 Ga. App. 442, it was held:
"The indecent condition may exist in the degree of the intoxication, even if there be no harmful act and no unbecoming languagE: or loud and violent discourse."
You will note that the words of the statute itself are "indecent condition or acting," and not "indecent conduct," as is sometimes used by the Courts.
The words of the statute, "or at any other place of public gathering or assembly," have not, so far as I can learn, been construed by the courts in connE:ction with this particular offense. However, in the case of Gamble v. The State, 113 Ga. 701, at page 703, the Court made the statement:
"The house in which they fought appears to have been a private one, rented by the defendants. There is no suggestion in the evidence that it possessed at ordinary times any of the elements which characterizE: a public place. It is true it was near a public road, and that a public road is, prima facie at least, a public place and may give that character to places in sight and hearing from the road." (Emphasis supplied).
In that particular case, no evidence had been introduce,d to show that the dance where the fight occurred was other than private, but the Court seems to imply that under proper evidence it could have been shown that the place was public. The Court's opinion also states
"A place ordinarily private may bE:come public, within the law of affrays, by being thrown open to the public upon a particular occasion .... Permitting only a certain class of the public to enter will not prevent the place from assuming the character of a public place."
The Court then quotes a definition of public place as follows: "In general the place must be one to which people are at the time privileged to resort without an invitation."
In the case of Wynne v. The State, 123 Ga. 566, at page 568, in the body of the opinion, the Court, in conne,ction with the offense of carrying a weapon at "any other public gathering," says that a barbecue at which several hundred persons are present is a public gathering within the meaning of that statute, and says
"The wholesome purpose of this statute would be much limited by putting a narrow construction upon the expression, 'any other public gathering.' "
I do not find any othE:r cases construing the words "public place" or "public gathering" in connection with the location as an element of a criminal offense; but reasoning from the things said and implied in these cases, I am inclined to believe that if the pool room or store are attached to, or are within the protection of a residence, or if they are so near a public road as to make it possible for things occurring therein to be seen and heard from the road, and if the> places are those to which people are privileged to resort without an invitation, then the Courts might decline to put a narrow construction on the words "or at any other place of public gathering or assembly," if to do so would defeat the plain purpose of the statute.
If it should be held that the store or pool room were such a place of public gathering, even though, strictly speaking, they are private property, then you

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would, of course, be authorized to arrest without a warrant for an offense committed in your presence, all other elements of the offense being present.
It is impossiblE: to say exactly what the courts would hold, but these personal views of the meaning of the statute may be of some assistance to you. I would suggest that you consult with your Solicitor-General, and get his views on the subject, also.
INTOXICATING LIQUORS-Malt Beverages The State Revenue Commissioner may decline to issue a malt beverage license for a location within 100 yards of a church.*
February 19, 1946 Ron. M. E. Thompson State Revenue Commissioner
Your letter of February 16, relative to retail malt bevE:rage licenses where an applicant's place of business is nE:ar a church, received.
When the State of Georgia entered on the policy of taxing the manufacture and sale of malt beverages, an Act was passed known as the "Malt Beverage Tax Act." The same was approved March 23, 1935. This law did not repeal what is known as the old "bone-dry" law in toto but rather modified it. It placed the sale and manufacture of malt beverages under strict police regulation and allows the manufacture and sale thE:reof by permit only. The right to manufacture and sell is a privilege and not a legal right.
The State license for the manufacture and sale of malt beverages is issued by the Department of Revenue. The same is nothing more nor less than a permit to manufacture and sell. The CommissionE:r of Revenue has a right to grant or deny a license. The Act itself gives him that authority.
The provisions of the malt beverage Act, approved March 23, 1935, were declared to be unconstitutional in part by the Supreme Court in the case of McCaffrey v. The State, 183 Ga. 827, because the Act contains subject matter not set out in the title.
On March 30, 1937, an Act was passed and approved amending the original Act with the idea of curing the defect. This amended Act has not been passed on by the court and is in full force and effect. It would seem that it was the legislative intent to forbid the location and licensing of malt beverage establishments nE:arer than 100 yards from a church. Whether the amended Act meets "the constitutional inhibition of passage of the law containing subject matter different from the expression of its title is somewhat doubtful."
To enforce the malt beverage Act a regulation was adopted immediately after the passage of the original Act and has been followed since, "not to license a place nearer than 100 yards from a church where the fact was known at the time of the making of the application."
I am of the opinion you can legally deny the issuance of a malt btverage license for a location less than 100 yards from a church, in your discretion. I am also of the opinion you can deny the license under the rules and regulations heretofore promulgated and adopted for the enforcement of the malt beverage Act. I am further of the opinion that you would be justified in denying the license in the present case under the law as amended.
See opinion dated December 11, 1947, page 381.

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INTOXICATING LIQUORS-Malt Beverages; Wine (Unofficial) (1) There is no provision for an election to prohibit the sale of malt beverages. Discretion as to the granting or refusal of permits is vested in the county and municipal authorities. (2) An election to prohibit the sale of wine may be required by a petition signed by 15% of the registered voters of the County. July 8, 1947
Hon. E. E. Tatum Star Route Dawsonville, Georgia
Your letter of July 1, with reference to holding an election for the purpose of prohibiting the sale of beer and wine in Dawson County, received.
The Malt Beverage Act passed in 1935, and as amended since that time, makes no provision for holding an election to prohibit the sale of malt beverages (beer). The Act places absolute authority in the county and municipal authorities. They can permit the sale or they can deny a license for the sale. It is entirely in their hands and in their discretion. See Code Section 58-718, to-wit:
"58-718. Discretion as to grant of pcrmits.-The privilege of manufacturing, distributing and selling by wholesale or retail of beverages provided in this Chapter is purely a privilege and no business legalized by this Chapter shall be conducted in any county or incorporated municipality of this State without a permit from the governing authority of such county or municipality, which said authority is hereby given discretionary powers as to the granting or refusal of such permits."
The Wine Act as originally passed, and amended, authorizes the calling of an election to prohibit the sale of wine. The county and municipal authorities would be bound by an election to prohibit the sale of wine. Fifteen per cent (15%) of the registered voters of Dawson County could by petition require the Ordinary to call an election for the purpose of prohibiting the sale of wine. A majority of the voters in Dawson County for the sale of wine, or against it, would be controlling.
Provision for the election is set out in Code Section 58-807, to-wit: "58-807. County election as to manufacture and sale. Disorderly places. Any county may, upon petition signed by 15% of its registered voters, call an election to determine whether or not the manufacture and sale of wines shall be prohibited in such county; and any county may, after hearing had before the superior court, close any place retailing wines, which is not conducted in an orderly manner.

INTOXICATING LIQUORS-Malt Beverages (Unofficial)

(1) The State lien for taxes on malt beverages attaches with the bottling

thereof in Georgia, or with the delivery to the consignee, when imported.

(2) The courts will not aid anyone in the recovery of malt beverages

seized because of unpaid taxes.

Hon. M. E. O'Neal

September 15, 1947

Solicitor City Court

Bainbridge, Georgia

Your letters of September 10, one to the Commissioner of Revenue and the

other to the Attorney General, with reference to untaxed malt beverages, re-

395
ceived. The letter to the Revenue Commissioner has been referrE:d to the Legal Department, both letters being identical.
All malt beverages manufactured in the State or imported into the State are subject to an excise tax under the Malt Beverage Act. The State's lien for said tax attaches simultaneously with the bottling thereof and the placing of same in barrels, bottles or cans, and instantly when it is delivered into the hands of the consignee when it is imported. No individual, wholesaler nor retailE>r can legally possess malt beverages unless the taxes on same are paid. The containers, bottles, cans or barrels, are required by law to be stamped. If the taxes are not paid the malt beverage is made by law contraband and is subject to be sE:ized by the officers of the State.
State courts will not lend their processes to anyone to recover malt beverages that have been seized because of unpaid taxE:s thereon. Malt beverages on which the tax has not been paid are contraband and, therefore, the possessor had no property right in the same. The point in quE>stion was clearly before the court in the case of Martin v. Cook, 72 Ga. App. 741. The principle of law involved is ably discussed in the case of Robertson v. Porter, 1 Ga. App. 223.
Whether an individual found in possession of untaxed beer is criminally liable, is covered by Code Sections 58-723, 58-725 and Supplementary Code Sections 58-726 and 58-727.
AnswHing the last question asked in your letter, there is no limit on the amount of malt beverages that an individual may possess or have on hand if the same has the tax paid thereon.
JURIES-Eligibility (Unofficial) The General Assembly may require jury service of women by the passage of an enabling act.
October 26, 1945 Miss Dorothy Shelverton 2596 Acorn Ave NE Atlanta, Georgia
I am pleasE>d to acknowledge receipt of your letter of October 23rd, in which you request information concerning the present status of women in Georgia to serve as jurors.
The Constitution as amended on August 7, 1945, provides in Article 6, Section 16, Paragraph 2 as follows:
"The General Assembly shall provide by law for the selection of the most experienced, intelligent and upright men to serve as grand jurors, and intelligent and upright men to serve as traverse jurors. Nevertheless, the grand jurors shall be competent to serve as traverse jurors. The General Assembly shall have the power to require jury service of women also, under such regulations as the General Assembly may prescribe."
You will note that the Constitution as amended added the last sentence to Paragraph 2 which gives the General Assembly the power to require jury service of women under such regulations as the General Assembly may provide. It will be necessary for the General Assembly to pass an enabling statute requiring the service of women and also setting forth proper regulations in order for Womc,n to be required to serve on juries.

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JURIES-Eligibility (Unofficial) Citizens between the ages of 18 and 21, although having the right to vote, may not serve as jurors.
August 12, 1946 Hon. B. F. Neal Montezuma, Georgia
You called over the phone this morning and requested that I advise whether or not citizens between the ages of 18 and 21 could serve on a jury, sincE: they have been given the right of ballot by the Constitution of 1945.
Sections 59-106 and 59-201 of the Code of 1933 deal with the selection of jurors, and the two sections should be construed together.
Under Section 59-106 the jury commissioners shall select from the. books of the tax receiver upright and intE:Iligent men to serve as jurors, and shall write the names of the persons so selected on tickets. The Section likewise provides that the jury commissioners shall select from the upright and intelligent men selected a sufficient number, not to exceed two-fifths of the whole number, of the most experienced, intelligE:nt and upright men to serve as grand jurors.
It will be seen from the above, and from the Code Section, that the jury commissioners first select men who are to serve as jurors, and that from this list so selected they select the grand juors. Section 59-201 of the Code provides that all male citizens of this State, above the age of 21 years, being neither idiots, lunatics, nor insane, who have resided in the county for six months and who are the most experienced, intelligent and upright persons are qualified and liable to serve as grand jurors.
Construing the two Sections together, the fact that the grand jurors must be taken from the list prepared by the commissioners to serve as jurors and coupling it with the provisions of Section 59-201 it will be readily seen that the age of jurors must be above 21 years.
I do not think that either of these Sections of the Code are in conflict in any way with the Constitution of 1945. The Constitution of 1945 merely grants to youths of the ages of 18 to 21 the right of suffrage, or the right to vote, and does not change the qualification as jurors.
JURIES-Justice Courts (Unofficial) ELECTIONS-Primaries (Unofficial)
(1) A juror in a justice court is not entitled to compensation unless a verdict is rendered. (2) A justice of the peace may fine an absent juror. (3) In county or city primary elections it is the duty of the party authorities to furnish the ballots and secure the necessary personnel.
November 25, 1947 Hon. J. Racer Evans Justice of the Peace Statesboro, Georgia
This will acknowledge your lE:tter in which you request certain information with reference to jurors in the Justice Courts, and in reference to elections.
You state in your letter that a jury was summoned in the Justice Court to

397
try a pending case, and neither the plaintiff nor the defendant was ready for trial, and the case was not tried, and you ask whether or not the jurors would be entitled to compensation for their services.
Section 6-407 of the Georgia CodE:, providing compensation for jurors in Justice Courts, provides that for each verdict the jury makes and returns the jurors shall be entitled to the sum of $2.50, to be paid by the party in whose favor the verdict is rendered. It would appear, therefore, that if the case was not tried and the jury was not called on to determine the issuE:s presented, they would not be entitled to any compensation.
With reference to the question as to whether or not a Justice of thE: Peace can compel a juror to serve, your attention is directed to Section 6-406 of the Georgia Code, which provides that the Justice of the Peace shall have the power to impose fines and issue executions against all defaulting jurors in an amount not to exceed $5.00, which shall be collectible by the Constable unless thE: absent juror, by the next terin of the Justice Court, files his excuse under oath or makes it in open court, which excuse is to be passed upon in eithtr case by the Justice of the Peace.
With reference to election, I presume from your lette.r that you refer to primary election11 and not to general elections.
In all primary elections it is the duty of the County or City Executive Committee, or other party authority of the political party holding the election, to provide the official ballot, and to secure the necessary personnel for the purpose of holding said primary election, under such rules and regulations as they may adopt.
LAND REGISTRATION-Mineral Leases A mineral lease is valid between the parties although not recorded, but may lose its priority over subsequent recorded. instruments.
March 15, 1946 Hon. C. W. Deming, Director Oil and Gas Commission Waycross, Georgia
Your letter of March 12th received. You refer to statE:ments that have been made to the effect that if a leaseholder did not register mineral leases under the Land Registration Law, sometimes referred to as the "Torrens Law," the owner of the land would have the right to upset the lease at will. You request that I advise concerning this statement.
The Land Registration Act is codified in Title 60 of the Code of 1933. Under that Act the owner of land has the right to have the title registered by complying with the terms and conditions set forth in the title. It constitutes a proceeding in rem against the land and where a proper dE:cree or judgment is entered by the Superior Court, and the judgment is not excepted to, the title becomes certain and fixed according to the decree.
I do not construe the law to mean that a lease-holder would have the right to have a lease rE:gistered as provided by the Act. A person holding less than the whole fee in land, if he has an estate in the land, would have such a right.
Where oil companies, or operators, secure from the true owner of land a Written contract of lease, such a contract is binding between the parties and could not be set aside by the owner at wi!l, evE:n though the lease was not regis-

398
tered under the Land Registration Act. Should a company obtain a written lease from the true owner of land and fail to record the same, as deeds and mortgages are recorded, and should the true owner sell the land to a third party who does not know of the lease, the third party purchasing the land would obtain a good title to all the interest in the land including mineral rights. Should such a third party, a bona fide purchaser, proceed before the Superior Court to have his title registered under the Land Registration Act and a judgment and decree be entered, such a judgment and decree would be binding against the holder of the lease which has not been recorded in the same manner that deeds and mortgages are recorded in Georgia.
I am of the opinion that the Georgia attorney was advising the operator to record the lease in the Clerk's office just as other deeds and mortgages are recorded. As before stated the purpose of such record is to protect the lease holder against the rights of any person who might in .the future deal with the true owner by purchasing the land or by placing incumbrances thereon by written contract.
Of course, should an oil company enter into the lease with a supposed owner, and it develops that the supposed owner is not in fact the true owner, or that there are other recorded or known lien~ or incumbrances, or other leases, where such leases are recorded, the operator would not be protected as against such claims because it would be incumbent upon him at the time of making the lease to ascertain from the records in the courthouse who the true owner of the land is and what incumbrances or liens are recorded against the land.
I am of the opinion that oil companies and operators have nothing to fear regarding a bona fide contract entered into by the land owners and themselves.
LAND REGISTRATION-Requirements (Unofficial) The new Notary Public Act (Ga. L. 1947, pp. 1108-1111) does not change the requirements for instruments which are to be recorded in the office of the superior court clerk.
April 22, 1947 Miss Sarah McKoy Clerk Superior Court Douglasville, Georgia
The new Notary Public Law, which was passed by the last session of the legislature, does not change the requirements regarding the filing of papers for recording in the offices of the Clerks of the Superior Court, so that the present statutes under which you operate are still in effect.
The new Law simply gives all commercial Notaries Public statewide jurisdiction; in other words, they are all Notaries State-at-Large.
The new Law also requires that the seal of the Notary shall contain the impression of the Notary's name, the words "Notary Public," the name of the State, and the county of the Notary's residence. It would appear, therefore, that those Notaries which now have a seal which bears the words "State-atLarge" must obtain a new seal which shows the county of their residence.

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LAND REGISTRATION-Requirements (Unofficial) Signatures of officers required on deed for purposes of recording should be: genuine and not facsimile.
April 28, 1947 Mr. Archibald R. Watson County Clerk New York 7, N.Y.
I beg to acknowledge your letter of April 27, in which you inquire whether or not under the laws of Georgia facsimile signature of the officer certifying the authe:nticity of the signature of a notary before whom deeds were acknowledged, would be sufficient to authorize such deeds to be recorded.
There is no specific law of Georgia authorizing the use by officials of facsimile signatures in certificates made by them in the discharge of their official duty. I am of the opinion, unofficially, that in all official acts on the part of officials, their official signatures should be genuine and not facsimile.
LIVE STOCK-Fences and Inclosures The Department of Corrections is not liable for the value of stock killed by eating poisoned crops on the property of Tattnall Prison, although the fencE> on the property did not meet the statutory requirements.
January 11, 1946 Hon. Francis R. Hammack, Director State Department of Corrections
Your letter in which you request my advice as to the legal responsibility of the Department of Corrections for the damage resulting to certain pe:rsons in Tattnall County, whose cattle were killed on the property of Tattnall Prison, is acknowledged.
I have carefully reviewed the facts contained in your letter. I have reached the conclusion that if the property on which the five cows died as a result of nitrate soda poison, belonged to private persons, the owners of th cows would have a legal claim against the property owners for an amount not to exceed the fair market value of the cows. This is true because Tattnall County is an "open range" or "Fence" County. The Jaw of Georgia has defined the dimensions and height of lawful fences in such counties in Godo Sections 62-401, 62-402, and 62-403. It appears that the property on which the five cows died as aforesaid was not a lawful fence as defined by the Code. Accordingly, under the ruling in the case of Atlanta & West Point RR v. Hudson, 62 Ga. 679 (2), the owner of th property on which the cows died would be liable as aforesaid and a suit for damages would be the proper remedy. However, as it does not appear that the Act creating the Department of Corrections provided that the Department could consent to a civil suit for damages, the owners of the cows are without a remedy. See Ramsey v. Hamilton, 181 Ga. 365; Printup v. Cherokee RR Co., 45 Ga. 365. I would like to call your attention to Code Sections 62-801, 62-802 and 62-803, which makes the owner of property liable in three times the value of cattle, that die as a result of eating poison crops, wherE> the property is not enclosed by a legally defined fence in an open range country.

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It does not appear that the Legislature has appropriated any fund to be used by the Department of Corrections, in paying the damages resulting from the Department's tortious acts. Therefore, should you pay the claims, you might subject yourself to personal liability to the State for the amount paid.
I realize that both of the claimants have agreed to take in settlement an ~xceedingly small percentage of the value of the cows that died on the Tattnall Prison property, but I am herE: concerned with the legal responsibility of the State Department of Corrections; and regardless of the equity of the claim, I am constrained to rule that it would be illegal for State funds to be used in paying the claims.
MARKETING ASSOCIATIONS-Cooperatives (Unofficial) The provisions of Code Chapter 65 relating to cooperative marketing associations do not prohibit the use of the word "co-op" in the name of a taxicab company.
May 23, 1947 Hon. C. G. Garner Secretary, Georgia Co-op. Council Athens, Georgia
Your letter of May 20, in which you request an opmwn in regard to the legality of the abbreviated word "co-op" used by taxi cab companies in Georgia, received.
It is my personal opinion that Chapter 65 of the Georgia Code of 1933 applies only to cooperative associations organized for the conducting of agricultural, dairy, mercantile, mechanical or other business on the cooperative corporation plan by persons engagE:d in the agricultural pursuits, dairy business, etc.
It is further my unofficial opinion that taxi cab companies in Georgia which have been duly chartered under the laws of the State, not coming under the head of the provisions of Chapter 65 of the Code, no objection having been filed to the granting of said charter, would not be required to comply with thE: provisions of the above Chapter, but would be within their legal rights in using the abbreviated word "co-op" or "cooperative" in their business.
MOTOR VEHICLES-License Fees (Unoffik:ial) A municipality may not levy a license tax on motor vehicles.
November 6, 1945 Hon. Arthur C. Butler, Director National Highway Users Conference Washington 4, D. C.
This will acknowledge your letter of November 1st, in which you request information as to thE: right of municipalities to levy a license tax on motor vehicles.
Section 68-312 of the Code of Georgia provides in part as follows: "Nothing herein shall prevent incorporated cities and towns from requiring by ordinance the owners of motor vehicles residing within the incorporated limits of said cities or towns to register the numbers of State licenses with the clerk of council or other officer to be designated by such city or town, together

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with a brief description of such motor vehicle, and said incorporated cities or towns shall have the power to provide a penalty for the violation of such ordinance: Provided, that no additional license fee shall be charged by any municipality."
While municipalities are prevented from levying license fees on motor vehicles, they may levy an ad valorem property tax against motor vehicle:s, provided of course, the charter of the municipality authorizes same.
MOTOR VEHICLES-Motor Carriers The Public Service Commission may issue free tags for vehicles used exclusively by motor common carriers in pick-up and delivery service within a municipality and not over the routes described in the certificate held by the carrier.
January 25, 1946 Georgia Public ServicE: Commission
Your letter of January 25, in which you ask my, official opinion as to whether or not the Commission has authority to issue "free tags" for trucks operating solely in pick-up and delivery service by motor common carriers, is acknowledged.
The question raised is one that does not afford a categorical answer. If the vehicle is one used in pick-up and delivery service: in and around a municipality lying on the route described in the Motor Common Carrier's certificate of Convenience and Necessity; and if the truck is used exclusively in making pick-up and deliveries of articles shipped to or from the municipality, it is my opinion that such vehicle would come within Rule 25, sub-section (j) of the General Rules and Regulations adopted by the Commission, and published August 1, 1945. The Rule is as follows: "The rule prescribing the payment of an annual registration fee of $25.00 on each motor vehicle shall not apply. to motor ve:hicles operated by motor common carriers exclusively in pick-up and delivery service within incorporate or police limits of cities and towns, and which are not operated over the routes described in the certificate or permits held by such motor common carriers, but the Commission will issue: license plates without the payment of fees upon the registration of such motor vehicles with the Commission by motor common carriers." The particular sections of the code to be interpreted in formulating an opinion on this question are: 68-629, 68-602 (b) and 68-623. 1. What authority has the Commission to formulate rules? Section 68-629 of the Code of 1933: "The Commission is hereby authorized to adopt such rules and orders as it may deem necessary in the enforcement of the provisions of this Chapter. Such rules and orders so approved by the Commission shall have the same dignity and standing as if such rule:s and orders were specifically provided in this Chapter." See in this connection the following cases: Maner v. Dykea, 55 Ga. App. 436; Maner v. Dykes, 183 Ga. 118; Zuber v. Southern R. R., 9 Ga. App. 539; Greene v. Atlanta, 162 Ga. 641; Aul;man v. Hodge, 150 Ga. 370. When we comdder Code Section 68-602 (b) in connection with Code Section 68-623, and examine the decisions of our appellate courts wherein these

40~
sections have been interpreted, we are struck with certain problems; and it is apparE:nt that the Commission adopted the rule, supra, so as to insure orderly administration of the law pertaining to motor common carriers and to insure the public of uninterrupted service in those cases where it had supervisory and regulatory control over the vehicles operated in pick-up and delivery service as an incident to the transporting of freight in a vehicle operating under a certificate.
Code SE:ction 68-602 defines the vehicles to which this chapter does not .apply. Subsection (b) :
"Taxicabs, drays, trucks, busses, and other motor vehicles, which generally Qperate exclusively within the corporate limits or police limits of cities and towns and are subject to regulation by the governing authorities of such cities or towns, or by the Commission; and this exception shall apply even though such vehicles may in the prosecution of thE:ir regular business occasionally go beyond the corporate limits of such towns or cities; provided, they do not operate to or from fixed termini outside of said limits." (Emphasis supplied).
Please bear in mind the language "or by the Commission," and the language in the last sentence, "do not operate to or from fixed termini outside of said limits."
To me, this language means that there are vehicles not subject to the provisions of the Chapter that are subject to the regulation of the Commission. What are those vehicles? They must be those operated within the provisions of the exception, but vehicles which "do not operate to or from fixed termini outside of said limits." They are regulated because the frE:ight hauled by them in the vehicles "operated under the certificate"; that is to say, freight hauled in vehicles over the routes defined in the certificate, is an incidE:nt of the Motor Common Carriers business.
This becomes more evident when we consider thE: language contained in Code Section 68-623, as follows:
"Every motor common carrier shall annually on or before January 1, so long as such certificate remains in force, or before the vehicle is put into use, as to a vehicle put into use during the course of the yE:ar, make application to the commission of all motor vehicles to be operated under the certificate, in a manner and form as the Commission may by rule or regulation prescribe, and shall pay to the Commission a fee of $25.00 for each vehicle for the registration of the same and the issuance of a permit or licensE: to operate the same. No subdivision of this State, including cities, municipalities, villages, townships or counties shall levy any excise license, or occupation tax of any nature on said equipment on the right to operate said equipment, or any incident of said motor carrier business or a motor common carrier." (Emphasis supplied).
Note particularly the words "under the certificate." When is a vehicle operating "undeor the certificate"? I believe it is so operating when it operates over the routes defined in the certificate.
The words "Certificate of Public Convenience and Necessity," mean when used in connection with the privilege under which a motor common carrier operates its vehicles, a vehicle operating bE:cause of convenience or necessity to the public, and serving the public under fixed requirements, over fixed routes to and from fixed points. Such vehicles so operating are operating "under the certificate," but a pick-up service run in connection therewith not over the defined routes to fixeod points but in and around a municipality lying on the

403
route of the vehicle operating "under the certificate," for the purpose of assembling freight coming into or going out of the municipality is not a vehicle upon which the motor common carrier shall pay the $25.00 fee, nor is it a vehicle subject to excise license tax of the city or municipality.
See Acme Freight Lines v. Vidalia, 193 Ga. 334, page 336. "The fact that the plaintiff may not havE> secured the permission of the commission to operate this service, or that it may not have been brought within the regulatory control of the Commission, does not vest in the municipality any authority to levy a tax against it." You will note that Chief Justice Reid, speaking for the court, avoided the use of the words "had not paid the $25.00 fee." Evidently he recognized that such pick-up and delivery service operated as an incident of a common carrier business should be under the regulation of the Commission, but that the vehicles, since they were not operated "under the certificate" were not subject to the $25.00 fee. In fact, he points out the exemption in 68-602 (b) and the exemption from local taxation under 68-623. See also City of Waycross v. Bell, 169 Ga. 57; Savannah v. Ellington, 177 Ga. 149. However, there is a distinction in the application of these two code sections betw10en a motor carrier operating this pick-up and delivery service as an incident of its business, and where in addition to this service it does additional pick-up and delivery service for the public generally. See the case of Cherry v. Atlanta, 47 Ga. App. 719. There would likewise be a distinction between a Motor Carrier operating pick-up and delivery service under the circumstances described herein and in addition th10reto using the exempted vehicles over the routes described in its certificate. If such were done, then such vehicle would be "operated under the certificate," and subject to the $25.00 fee required under Section 68-623.
MOTOR VEHICLES-Motor Carriers A certificate of public convenience and necessity which has b10en revoked and cancelled by the Public Service Commission under the Motor Carrier Act of 1931 may not be reinstated without a new application and proof of public convenience and necessity.
March 5, 1946 Georgia Public Service Commission
Your request for my opinion on the question of whether or not the Commission, under the Motor Carriers Act of 1931, has authority to reinstate a CHtificate of Public Convenience and Necessity which has been cancelled for cause without new proof of public convenience and necessity, is acknowledged.
It is my opinion that where the Commission, under Code Section 68-607, after notice and opportunity to be heard, and for reasonable cause, revokes and cancels a certificate of Public Convenience and Necessity, such certificate becomes forever dead and that the original holder thereof has no further privileges thtreunder, and that before the holder of such cancelled and revoked certificate can again enjoy the privileges he fo1merly enjoyed under the certificate, he must first file a new application and that it then becomes the duty of the Commission to assign the same for a hE>aring so that the Commission may determine, under the provisions of the Motor Carrier Act, that the public

404
interest requires such operations. The questions that the Commission shall determine upon such hearing are as provided in Code Section 68-609 and are as follows:
" (1) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs.
"(2) The volume of existing traffic over such route, and whether such traffic that reasonably to be anticipated in the future can support already existing transportation agencies and also the applicant.
"(3) Financial ability of the applicant to furnish adequate, continuous, and uninterrupted service for the year round; and to meet the financial obligations of the service which the carrier proposes to perform.
" (4) The effect, expense, and burden on the public highways, including bridges, and on the traffic, both private and common carrier, thereon.
"(5) The effect on existing transportation revenues and service of all kinds, and particularly whether the granting of such certificate will or may seriously impair essential public service."
You will note that Code Section 68-607 provides for a revocation or change of a certificate. Please note the following language:
"The Commission may, at any time after notice and opportunity to be heard and for reasonable cause, suspend, revoke, alter, or amend any certificate issued under this chapter, if it shall be made to appear that the holder of the certificate has wilfully violated or refused to observe any of the lawful and reasonable orders, or regulations prescribed by the Commission or any of the provisions of this chapter or any other law of the State ... " (Emphasis supplied).
The language used in your rule nisi cannot be overlooked. It is as follows: " ... why the Commission should not suspend your operations and cancel your class A certificate." (Emphasis supplied). Evidently you were going to do one of two things, namely, either suspend or cancel, either of which you could do under Section 68-607. You assigned the rule nisi for hearing. A hearing was had in conformance with due process. You then made a determination and your order is in the following language: "ORDERED: That the above mentioned Class............certificate number ----------he and the same is hereby revoked and cancelled . . . " (Emphasis supplied.) You will note that while in your original notice you stated "suspend or cancel" that after the hearing, your order stated "certificate revoked and cancelled." Any court would interpret such action as meaning you used "revoked" and "cancelled" in its usual and legally accepted definition. If you had intended to "suspend" the certificate, you could have done so. You gave notice to the certificate holder that you would either suspend or cancel the certificate. You did not suspend it, however, you revoked and cancelled it. It, therefore, became dead. You wiped the certificate from your records. It was obliterated by your act and before the original holder can acquire any new privileges over the highways of Georgia in the operation of a motor carrier, he must start anew by making application and proving at the hearing that the public interest requires the new service.

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MOTOR VEHICLES-Motor Carriers The Public Service Commission may charge a fee covering the cost of purchase and distribution of tags to reciprocal carritrs, their pick-up and delivery trucks, which are exempt from the $25 registration fee.
July 28, 1947 Hon. A. 0. Randall, Secretary Georgia Public Service Commission
This will acknowledge your letter in which you requested an official opinion as to whether or not the Georgia Public Service Commission has the authority to charge a small fee for the issuance of tags to reciprocal carriers operating within the State of Georgia, as well as to their pick-up and delivery trucks, the charge to cover only the cost of purchasf: and distribution of said tags.
Sub-section (j) of Rule 25 of the Commission's General Motor Carrier Rules and Regulations relieves motor carriers from the payment of an annual registration fee of $25.00, but provides "but the Commission will issue license plates without the payment of fees upon the registration of such motor vehicles with the Commission by motor common carriers." Although this section relieves certain motor carriers from the $25.00 registration fee, nowhere in the section does it provide that the Commission could not charge a small fee covering the cost of issuing license plates to these carriers. I do not believe that it was the intention of the Legislature to require the issuance of license plates to certain carriers at the expense of the Public Service Commission and without compensation to cover the cost of purchasing and issuing the license plates. It is the policy of the State that all vehicles operating upon and over the highways and stref:ts in Georgia should be properly identified, which guarantees to the general public, State officials, and the parties concerned, a means of properly identifying all vehicles. It is my opinion, therefore, that a small charge covering only the cost of purchasing and issuing license tags to motor carriers exempt from the $25.00 registration fee provided in Sub-section (j) of Rule 25 would be legal and without objection.
MOTOR VEHICLES-Safety Regulations (Unofficial) The law requiring two front headlights for motor vehicles operated on the State highways should be enforced until the courts resolve the doubt as to whether it has been repealed by implication.
February 20, 1946 Hon. James D. Gould, Jr. Senator, 4th Senatorial District Brunswick, Georgia
This will acknowledge your letter of February 5, in which you request an opinion with respect to whether the present State law requires two headlights for any vehicle under power operating on the highways of the State. You state that you have been informed by the State Patrol that they have no authority to enforce the law requiring two htadlights in view of the Act approved March 27, 1941 (Ga. L. 1941, pp. 449, 451) which requires only one headlight.
Prior to 1939, the law regarding the lights which were required on motor vehicles using the public highways of the State was found in Section 68-302

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of the Georgia Code of 1933 as amended by an Act approved March 19, 1935. (Ga. L. 1935, pp. 152-154) That Code section provided in part:
"Every motor VE:hicle using the highways at night shall be equipped with a lamp or lamps clearly visible for a distance of not less than 100 feet from the front and rear.
" 'Front lamps'-Every motor vehicle and tractor shall be provided with at least two lamps of approximately equal candle power, mounted on the right and left side thereof, and every motorcycle shall have mounted on the front thereof at least one lamp. The front lamps shall throw light to a reasonable distance in the direction in which such vehicle is proceeding and shall be provided with a suitablE: device for dimming or changing focus, so as to prevent dangerously glaring or dazzling rays from the lamps in the eyes of approaching drivers."
An additional provision of the Code section required a rear lamp capable of displaying a red light visible for a distance of at least 100 feet behind such vehicles. Section 68-9908 made the violation of the provisions of the foregoing Code section a misdemeanor. At the same time, Section 68-702 of Chapter 68-7 of the Code which provided for the regulation of motor vehicles for hire, also containE:d a provision as follows:
"Every vehicle using the highways at night shall be equipped \Yith a lamp or lamps clearly visible for a distance of not less than 100 feet from the front and rear thereof."
By Section 68-9913, it was also made a misdemeanor to violate the provisions of Chapter 68-7 of the Code.
By an Act approved March 24, 1939 (Ga. L. 1939, pp. 295-303) the General Assembly promulgated driving and traffic regulations upon the public streets and highways of this State which in many instances conflicted with and by implication repealed the traffic regulations which had theretofore existed. Section 4 (A) of that Act provided:
"Every motor vehicle operated on the public streets or highways of this State shall be equipped with two front headlights located near the side extremities of the front, capable of revealing a person, vehicle or object at least five hundred feet (500') ahead in the darkness, and so arranged that at no time will the beam from said lights create a blinding glare or interfere with the vision of the driver of any vehicle approaching within five hundred feet (500') of said vehicle; and any auxiliary headlights in front must be extinguished when within five hundred feet (500') of any vehicle ahE:ad or any congested traffic area; and shall keep them extinguished until passing the approaching vehicle; provided, further, that every such motor vehicle shall be equipped also with a rear light, red in color, and visible for at least two hundred feet (200') in the darkness in the rE:ar; and provided, further, that said lights, both front and rear, when said motor vehicle is being operated on a public street or highway must be lighted one half hour after sunset to one half hour before sunrise and at any other time when vision is restricted for any reason less than five hundred feet (500') along a public street or highway."
In 1941 the General Assembly passed an Act governing and regulating the use of the public roads and highways of the State. It appears that the primary purpose of that Act was to make it unlawful (with certain exceptions) to operate upon the public roads or highways any vehicle or vehicles which do not conform to uniform standard specifications (set out in the Act) which had

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been adopted by the American Association of highway officials and the United States Bureau of Public Roads. (Ga. L. 1941, pp. 449-454). However, Section 3 of the Act contains the following provision:
"Every vehicle using the highway at night shall be equipped with a lamp or lamps clearly visible for a distance of not less than 100 feet from the front and rear thereof."
The 1941 Act specifically repealed those sections of the Code which had theretofore defined the size and weight of vehicles which could be operated upon the public roads and highways, including Section 68-702 of the Code which had contained a provision regarding lights identical with the one which is contained in Section 3 of the 1941 Act. Section 6 of the Act provides:
.''The provisions of this Act, not in conflict with or superseding existing laws, are declared to be cumulative to the laws of this State regulating the use of highways and public roads of this State."
The major difficulty which arises in construing the 1941 Act with regard to the question you ask is that although the Code section (68-702) which had previously contained the same provision regarding lights and which was specifically repealed was adopted from an Act of 1931 (Ga. L. 1931, Ex. Sess., pp. 114-117) regulating motor vehicles for hire, the 1941 Act is not so limited in its application. Apparently the question of whether the 1941 Act, by implication, repealed the pre-existing provisions requiring two headlights and one tail light on motor vehicles using the public streets or highways has not been passed upon by the Appellate Courts of the State. However, the general rules for the construction of statutes furnish some aid in deciding this question.
Repeals by implication are never favored. Thornton v. McElroy, 193 Ga. 859; Thomas v. Board of Commissioners, 196 Ga. 10; Wood v. The State, 68 Ga. App. 43.
A statute must be construed with reference to the whole system of which it forms a part. Botts v. Southeastern Pipeline Company, 190 Ga. 689.
It is dangerous to imply a legislative intent contrary to previous legislation from doubtful expressions which may admit of different interpretations. Trustees v. Atlanta, 76 Ga. 181; Columbus Mutual Life Insurance Company v. Gullat::, 189 Ga. 747.
A general law will not be so construed as to repeal an existing particular or special law unless it is plainly manifest from the terms of the general law that such was the intention of the law making body. Davis v. Dougherty County, 116 Ga. 491.
Bearing the above rules of construction in mind, it is helpful to refer back to Section 68-302 of the Code as it existed before the approval of the Act of 1939. That Code section contained a general provision regarding lights almost identical with the one contained in the Act of 1941. The Code section then dealt specifically with "front lamps" and "rear lamps" requiring two of the former and one of the latter (with certain specified exceptions). Thus under the law as it existed prior to 1939, a provision such as that contained in the 1941 Act was a general provision which defined the distance from which lamps on motor vehicles must be visible but which did not conflict with the specific provisions requiring two "front lamps" on "every motor vehicle and tractor" and one red "rear lamp" on every "motor vehicle, tractor, and trailer." Accordingly it is doubtful whether the General Assembly, by reenacting such a general provision in the Act of 1941, intended by implication

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to repeal the specific provisions requiring two front lamps and one rear lamp. The same conclusion might be reached regardless of whether the Act of 1939, which related to "the dimming of lights of motor vehicles" repeale:d, by implication, the mentioned provisions of Code Section 68-302 because both required two front and one rear light so that the Act of 1941 would conflict with the Act of 1939 only in the extent of visibility required of the lights. However, it is interesting to note that the Court of Appeals in Sumner v. Thomas, 72 Ga. App. 351, 367, 369, which case involved an automobile accident occurring Dece:mber 19, 1943, did not question the plaintiff's reference to Code Section 68-302 as the statute setting out the requirements for tail lights, nor mention the Act of 1939.
The question, admittedly, is not free from doubt, especially in view of another general rule that criminal statutes are to be strictly construed. Wood v. State, 68 Ga. App. 43. An opinion from this office cannot bind the courts before which a person arrested for failing to have two headlights is tried, and if the court dismisses the case or finds the defendant not guilty the State has no re:course to the Appellate Courts. But since the most practical way to have this question finally determined, without additional legislation, is by an appellate court decision, cases should be made against persons driving motor vehicles along the highways at night without two front lamps until a conviction is obtained and an appeal taken from such conviction to the proper appellate court.
MOTOR VEHICLES-Safety Regulations The Act permitting the Department of Public Safety to fix special speed restrictions, within an authorized maximum, on any segment of a public street or highway, based upon an engineering or traffic survey, is not an unconstitutional delegation of legislative power.
May 28, 1947 Hon. James Q. Davis, Director Department of Public Safety
Your request of May 22, for an opm10n from the Attorne:y General, has been received. You ask the question: "Is Section 2 (c) of the Georgia Laws of 1939, pp. 297-8, a valid law?" The Section referred to reads as follows:
"Whenever the Department of Public Safety shall determine, upon a basis of an engineering or traffic survey, that any speed herein above authorized is greater than is safe under the conditions found to exist on any segment of a public stre:et or highway, said Department shall fix, determine and declare special speed restrictions thereat and therefor, and may put same into effect by erecting proper highway signs, giving notice of said restrictions at such place or places."
From the above interrogatory, it appears that the question to be determined is whether this Section of the Act is such a delegation of legislative authority as to be unconstitutional as being repugnant to Article 3, Section 1, Paragraph 1 of the State Constitution.
The Georgia Supreme Court in Long v. State, No. 15818, decided May 15, 1947, he:ld an act of the legislature, applying to counties in which there is situated a city with a population of 200,000, which provided that "the Board of Commissioners of Roads and Revenues or other county authority having charge

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of the roads and revenues of such counties shall have full power and authority . . . to define and declare what are congested areas and restricted territories relative to speed of vehicles .. as may be found by said Boards to be necessary to E:ffectively provide for the safety and convenience of the citizens of the county as to the use of the public roads of the county outside of the incorporated limits of municipalities," and which Act also made it a misdemeanor to violate any rules and regulations so adopted by the county, to be an attempt to delegate legislative power and therefore unconstitutional.

It is a familiar rule that an Act of the legislature will not bE: declared

unconstitutional except where it is clearly and palpably so. This has been

many times emphatically stated by the Supreme Court. Boston and Gunby v.

Commiuioners, 16 Ga. 102.

.

In 12 Corpus Juris, pp. 844 through 847, "While the legislature may not delegate power to make laws, it may vest a large measure of discretionary authority in officers charged with the administration of the laws, as, for example, laws enacted in pursuance of the police power for the protection of the health and safety of the people ... obviously, the conferring of administrative powe:rs to enforce a statute is not a delegation of legislative authority. Especially may the legislature authorize an administrative officer or body to make rules and regulations relating to the enforcement of the law. . . The legislature may delegate to executive officers the power to determine certain facts, or the happening of a contingency, on which the operation of the statute is, by its terms, made to depend: as, for example, . . . whether a bridge over a navigablE! stream constitutes an unreasonable obstruction to navigation. . . The rule is now established that the legislature may authorize an officer to make rules and regulations for the purpose of carrying out the objects of the statute, and may make a violation of these rules a criminal offense, punishable in a manner prescribed by existing law."

In the case of Milwaukee v. State Railroad Commission, 162 Wis. 127, a statute authorizing a commission to abolish grade crossings when public safety re:quires was held not to be an unlawful delegation of legislative power. "The time has gone by when it can be successfully claimed that such a law unlawfully delegates legislative power. The legislature has exercised the legislative function by declaring that unsafe crossings shall be made safe; it can properly delegate to an administrative: board the power to ascertain the crossings which are in fact unsafe, and to prescribe the manner of making them safe. If this could not be done the police power would be unable to cope with many of the

most serious problems of modern life."

The policy of the General Assembly in passing the Act pertaining to driving and traffic regulations as found in the Georgia laws of 1939, beginning at page 295, clearly appears to have been to prohibit reckless driving and to restrict the speed of vehicles on the public streE:ts and highways, inter alia, and thus to protect the public. The legislature, having declared its policy and purpose and provided standards for the exercise of the power, may confer upon administrative authorities the power to enact rules and regulations to promote the purpose and spirit of the legislation and carry it into effect, and, even though such rules and regulations are given the force and effc,ct of law, there is no violation of the Constitutional inhibition against delegation of the legis-

lative function. See 42 Am. Jur. 353. The present law being considered is distinguishable from that construc,d

410
as being unconstitutional in the recent case decided by the Supreme Court of Georgia (Long v. The State, No. 15818, supra) in that the latter Act, as it is stated in the opinion of Justice Atkinson, who spoke for the full bench Court, "... attempted to authorize the County Commissioners to make a law, by defining the Act, the violation of which would be a misdemeanor, and was a plain attE:mpt to delegate the legislative authority of the General Assembly to the County Commissioners. . . . The Act in question sought to give the County Commissioners authority to change and modify the terms of an existing penal statute, by permitting them to prescribe a speed limit according to their discretion. This would be a clear delegation of legislative power, and would be tantamount to substituting the discretion of the County Commissioners for that of the General Asstmbly in prescribing the terms of a law . . ."
But the Act under consideration here was not so loosely drawn. The General Assembly in declaring its policy in the Act, i. e., among other things, to prohibit reckless driving and to restrict speed upon the streets and highways of the State, clearly recognized that the mere prescribing of a maximum speed limit would not be sufficiently protective of human life and property; that there were bound to be congested areas and portions of roads lying outside of municipal limits where the speed of 55 miles per hour would be excessive and hazardous. Accordingly, it was provided in Ga. Laws, 1939, Section (a), (b) and (c) as follows:
"(a) No person shall operate a motor vehicle upon any public street or highway at a speed that is greater than is reasonable and safe, having due regard to the conditions then existing, including the width, grade, character, traffic, and common use of such street or highway, or so as to endanger life or limbs, or property in any respect whatsoever."
"(b) Subject to the foregoing limitations operators of motor vE:hicles upon the public streets and highways of this State are authorized to operate them up to but not exceeding the speed limits provided in the following classified tabulation: . . . Provided, however, that all passenger motor vehicles operated on the public streets and highways of this StatE: and having pneumatic tires are authorized to operate at a speed up to but not exceeding 55 miles per hour."
"(c) Whenever the Department of Public Safety shall determme, upon a basis of an engineering or traffic survey, that any speed herein above authorized is greater than is safe under the conditions found to exist on any segment of a public street or highway, said Department shall fix, determine and declare spE:cial speed restrictions thereat and therefor, and may put same into effect by erecting proper highway signs, giving notice of said restrictions at such place or places."
It is to be noted that Section 2 (b), all of it, is specifically made subject to the limitations contained in Section 2 (a). Having thus declared its policy as to speed upon highways as being a maximum of 55 miles per hour, but limiting this maximum speed to be adjudgE:d by the criteria as to whether it (any speed being traveled) was "reasonable and saf6", the General Assembly recognizing its inability to provide for every possibility of dangerous road conditions which might arise such as congested roads, or unsafe roads, etc., specifically authorized the Department of Public Safety to declare speed restrictions after first making an engineering or traffic survey and determining ther6by that the authorized speeds (Section 2 (b)) were unsafe. Thus, it is to be perceived

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that when acting under the authority contained in Section 2 (c), the Department of Public Safety is not undertaking a legislative act, but rather it is only carrying out the declared policy of the Gt:neral Assembly. This is merely an administrative function. See, Ashland Transfer Co. v. State Tax Commissioner, 565 S. W. 2d 691. See also, Southern Railway Company, v. Melton, 133 Ga. 277.
With the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increase,d difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature, and toward the approval of the practice by the Courts. See 12 Corpus Juris 841.
Based upon the foregoing it would seem to follow that the question which you propounde,d must be answered in the affirmative. It is, therefore, our opinion that Section 2 (c) of the Georgia Laws of 1939 as found on pages 297 and 298, is a valid law.

MUNICIPAL CORPORATIONS-Bonds (Unofficial) In computing the assessed value of taxable property for the purpose of determining the amount of bonds a municipal corporation may issue, personal property above the $300 exemption should be included.

Hon. Mack G. Hicks Attorney at Law Rome, Georgia

November 12, 1946

Your letter of November 7th received. You state that the city authorities of Rome contemplate calling an election for a bond issue, and you request my opinion on the question of whether or not personal property should be added with the real estate for the purpose of determining the amount of bonds that can be issued under Section 7, Paragraph 1, Article 7 of the Constitution, which provides that the amount of bonds shall never exceed the seven per centum of the assessed value of all the taxable property therein.
The constitutional provision referred to above, and also referred to in your letter, provide,s in part as follows:
"The debt hereafter incurred by any county, municipal corporation or political division of this State except as in this Constitution provided for, shall never exceed seven per centum of the assessed value of all the taxable property
therein, *' * *."

You will note that the above provision of the Constitution provides that the debt shall not exceed seven per centum of the assessed value of taxable Property. Therefore, this provision as to the amount that a city may become indebted should be construed in connection with Paragraph 4, Section 1, Article 7 of the Constitution which relates to tax exemptions. It is therein provided:

"All personal clothing, household and kitchen furniture, personal property usE:d and included within the home, domestic animals and tools, and implements of trade of manual laborers, but not including motor vehicles, are exempted from all State, County, Municipal and School District ad valorem taxes, in an amount not to exceed $300.00 in actual value."
It will be noted under the above constitutional provision personal prop-

412
erty, other than automobiles, is exempt from taxation in an amount not to exceed $300.00.
The same Paragraph of the Constitution provides, as it relates to real estate, as follows:
"The homestead of each resident of Georgia actually occupied by the owner as a re:sidence and homestead, and only so long as actually occupied by the owner primarily as such, but not to exceed $2,000.00 of its value, is hereby exempted from all ad valorem taxation for State, county and school purposes, except taxes levied by municipalities for school purposes and except to pay
interest on and retire bonded indebtedness, * * *."
Construing the two provisions of the Constitution togethe:r, it is my private view that a debt by a city under a bond issue could not exceed seven per centum of the taxable property as shown by the tax digest of the city. In arriving at the total value of the tax digest of the city, the assessed value of all real estate should be included. Only the taxable portion of personal prope:rty should be included. In other words, the assessed value of automobiles, and the assessed value of personal property above the personal property e:xemption of $300.00, would be included in the total. The exempt personal property up to $300.00 would be excluded from the total assessment.
MUNICIPAL CORPORATIONS-Charters (Unofficial) A municipal charter may not be granted by the superior court under the 1938 Corporation Act.
March 7, 1947 Hon. Hubert F. Rawls Counsellor at Law Nahunta 1, Ge:orgia
I am pleased to acknowledge your letter of recent date requesting an unofficial opinion concerning the granting of a charter for the incorporation of a township by the Superior Courts of this State.
I am of the unofficial opinion that the Superior Courts, under the 1938 Corporation Act, are not empowered to grant charte:rs for the incorporation of towns and cities.
I wish to cite the case of Wall v. Mayor and Council of Milledgeville, 197 Ga. 165 (4) wherein the court held that Section 22-302 of the Code of Georgia is not applicable to municipal corporations. This section of the code was superseded by the 1938 Act; however the new section does not, in my opinion, grant any additional power to the Supe:rior Courts in connection with municipal corporations.
I think the legal method of incorporating a municipality falls within the premises of the General Assembly.*
*The Aet of 1872, p. 16, authorizing the incorporation of towns and villages by the superior courts appears to be still effective, although of very limited application.

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MUNICIPAL CORPORATIONS-Home Rule (Unofficial) The home rule provision of the 1945 Constitution is not self-exE:cuting and did not repeal the provisions of municipal charters.*' October 11, 1945
Ron. J. 0. Lay 434 Academy Street Gainesville, Georgia
Your letter of October lOth received. You request that we advise whether or not the adoption of the home rule provision in the Constitution of 1945 has the effect of nullifying the present laws under which the cities of the State optrate.
Paragraph 1, Section 1 of Article 15 of the Constitution of 1945, provides as follows:
"The General Assembly shall provide for uniform system of county and municipal government, and provide for optional plans of both, and shall provide for systems of initiative, referendum and recall in some of the plans for both county and municipal governments. The General Assembly shall provide a method by which a county or municipality may select one of the optional uniform systems or plans or reject any or all proposed systems or plans."
The General Assembly has not yet passed any enabling acts to put into effect the home rule fE:ature incorporated in the Constitution. The laws enacted by the General Assembly granting powers to the cities and municipalities remain of force and effect where they do not conflict with some provision of the Constitution. Until the General Assembly has passed enabling acts putting into effect the home rule and thE: people of the local political subdivisions have adopted some one of the optional plans proposed by the General Assembly, the laws as contained in the charters of the different municipalities will prevail if they do not conflict with some other provision of the Constitution. Paragraph 3, Section 1 of Article 12 of the Constitution of 1945, provides in substance that all laws now of force in the State, not inconsistent with the Constitution, shall rE:main of force until the same are modified or repealed by the General Assembly.
MUNICIPAL CORPORATIONS-Taxes (Unofficial) A municipal corporation may not levy a business license tax upon a commercial railroad maintaining a warehouse in the municipality as an incident to its business as a common carrier.
May 16, 1947 Ron. J. C. Hatcher City Clerk Screven, Georgia
This will acknowledge your letter of May 15th in which you request information as to whether or not the City of Screven, Georgia, has the power to levy a business license tax upon the Atlantic Coast Line Railroad which operates through your city and which maintains a large warehouse for the purpose of receiving and shipping freight.
Your attention is directed to the case of Town of Arlington v. Central of Ga. Railway Co., 127 Ga. 721, wherein the Court held:
See the Act of 1947, pp. 1118-1130.

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"1. Following the ruling in City Council of Augusta v. Cen~ral Railroad, 78 Ga. 119, there is no authority vested in any municipality in this State to levy and collect an occupation tax upon a commercial railroad doing business in such municipality".
"2. A commercial railroad which maintains a warehouse merely for the purpose of receiving goods for shipment and storing goods shipped to such point, and does not seek or solicit goods for storage, but merely stores in such warehouse the goods of consignee:s for the reason that such consignees fail or refuse to call for and receive the same, and charges only for such storage the amount authorized by the railroad commission of the State, and for the time so authorized, is not subject to the provisions of a municipal ordinance levying an occupation tax upon warehousemen. When a municipality is prohibited by law from taxing the general business of a commercial railroad as a common carrier, it can not segregate from such business a necessary incident and classify it as an occupation and tax it as such."
It appears, based upon the holding of the Supreme Court quoted above, that a municipality is prohibited from making or collecting an occupation or business license tax upon a commercially operated railroad.

MUNICIPAL CORPORATIONS-Taxes (Unofficial) (1) A church is exe:mpt from municipal taxes. (2) A parsonage is not exempt from municipal taxes.

October 22, 1947

Mrs. Thomas Trotter

Madison, Georgia

This will acknowledge your letter asking the following questions:

"Is a city allowed to levy a tax against church property in the State of

Georgia? Can they levy tax against a dwelling owned by the church in which

the pastor of that church lives? This dwelling is directly adjacent to the church

building."



The Act of the General Asse:mbly 1946, Page 12, Section 1, provides in

part as follows:

"The following described property shall be exempt from taxation:

"(a) All public property; places of religious worship or burial; all insti-
tutions of purely public charity; * * * provided the property so exempted be not used for the purpose of private or corporate profit and income * *' *".

You will note under this provision "places of religious worship or burial"

are exempt from all taxation.

In the case of St. Mark's Church v. The Mayor of Brunswi::k, 78 Ga. 541,

the Supreme Court of Georgia held:

"While 'all public property, places of religious worship or burial,' are

among the property which may be exempted, this does not include parsonages

in which rectors reside."

The homestead exemption law as provided under the Acts of 1945, Page

14, Section 1, Sub-section (c) is as follows:

"The Homestead of each resident of Georgia actually occupied by the

owner as a residence and homeste:ad, and only so long as actually occupied by

the owner primarily as such, but not to exceed $2000.00 of its value, is hereby

exempted from all ad valorem taxation for State, county and school purposes,

415
except taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebtE:dness, provided, however, should the owner of a dwelling house on a farm, who is already entitled to homestead exemption, participate in the program of rural housing and obtain a new house under contract with the local housing authority, he shall be entitled to receive the same homestead exemption as allowed before making such contract. ThE:' General Assembly may from time to time lower said exemption to not less than $1250.00. The value of all property in excess of the foregoing exemptions shall remain subject to taxation. Said exemptions shall be returned and claimed in such manner as prescribE:d by the General Assembly. The exemption herein provided for shall not apply to taxes levied by municipalities."
Section 92-233 of the Code of Georgia in defining the word "homestead" provides:
"(i) The actual place of residence of a minister of the gospel, which said place of residence is owned by the church faith which said minister is serving and for which said place of rE:sidence the church faith is not receiving any rent or other financial benefit."
You will note that under the provisions of the homestead exemption law a parsonage such as described in sub-section (i) above would be exempt up to the value of $2000.00 only from State, county, and school purpose taxes, except taxes levied by municipalities for school purposes and except to pay interest on and retirE:' bonded indebtedness. It does not exempt from city taxes.
The Act of 1946, Page 13, Section 1, Sub-section (b) is as follows: "All personal clothing, household and kitchen furniture, personal property used and included within the home, domestic animals and tools, and implements of trade of manual laborers, but not including motor vehicles, are exempted from all State, County, Municipal and School District ad valorem taxes, in an amount not to excE:ed $300.00 in actual value." You will note that the items of personalty exempted under this provision are from State, county, municipal, and school district ad valorem taxes; however, it does not apply to real property in any way.
MUNICIPAL CORPORATIONS-Torts (Unofficial) (1) There is no State statute imposing liability upon municipalities for mob and riot damage. (2) An arresting officer having knowledge of an assembly for the purpose of perpetrating violence upon any citizen and failing to attempt in good faith to suppress the same is guilty of a misdemeanor.
December 14, 1945
Hon. Clyde E. Sheets Assistant City Attorney Milwaukee 2, Wisconsin
This will acknowledge your lE:tter of December 10, in which you request an extract of statutes imposing liability upon municipalities for mob and riot damage, together with citations construing those statutes.
There is no special statute in Georgia fixing the liability of municipalities on account of mob violence. The law fixes a duty upon the officers to suppress, if possible, any mob violence or lawlessness. Section 26-5401 of the Code of Georgia of 1933 reads as follows:

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"Whenever any officer, charged with the duty of preserving the peace and executing thE: lawful warrants of this State, has knowledge of any violence attempted to be perpetrated upon any citizen by mob violence and without due authority of law, it shall be his duty to summon to his assistance, either in writing or verbally, when necessary, any of the citizens of the neighborhood or county, whose duty it shall be to prevent such mob violence, if in their power to prevent it and they shall use every means in their power to prevent it. It shall be the duty of the sheriff or other officer charged with this duty, and of the posse summoned as aforesaid to the end of suppressing a riot or preventing mob violence, to arrest the persons engaged in the same and place them in the common jail of the county or other place of safety, to be dealt with as the law directs; and any person so engaged in mobbing or lynching any citizen without due process of law shall be punished by imprisonment in the penitentiary for not less than one nor more than 20 years, and should death rE:sult from such mob violence, the person causing said death shall be subject to indictment and trial for the offense of murder."
Section 26-5402 of the Code reads as follows: "Any sheriff or other arresting officer having knowledge of a meeting or assembling together of any citizens for the purposes set forth in the preceding section, and failing to attempt in good faith to suppress the same, either by himself or by summoning a posse as prescribed in said sE:ction, shall be guilty of a misdemeanor."
MUNICIPAL CORPORATIONS-Zoning; Revenue Certificates (Unofficial) (1) The provision of the 1945 Constitution authorizing zoning and planning laws for municipalities is not self-executing.* (2) The provision of the 1945 Constitution authorizing municipalities to issue revenue certificatE:s to buy, construct, extend, operate and maintain gas and electric generating and distribution systems is not self-executing.
October 10, 1945 Hon. W. Howell Morrow Attorney at Law West Point, Georgia
Your letter of September 29th received. You request an opm1on on the question of whether or not the City of West Point has the right to zone the city with rE:spect to filling stations, business buildings, resident sections, etc., without an enabling act to put into effect the provisions of Paragraph 23, Section 7, Article 3 of the Constitution of 1945, and whether or not the city of West Point can build and own a gas system by the issuance of revenue certificates without issuing general obligation bonds.
Paragraph 23, Section 7, Article 3 of the Constitution of 1945 provides as follows:
"The General Assembly of the State shall have authority to grant the governing authorities of the municipalities and counties authority to pass zoning and planning laws whereby such cities or counties may be zoned or districted for various uses and other or different uses prohibitE:d therein, and regulating
*See the Act of 1946, pp. 191-203.

417
the use for which said zones or districts may be set apart, and regulating the plans for development and improvements on real estate therein."
I do not think that the provision of the Constitution is self executing. I construe the provision as only giving to the Gf:neral Assembly of the State authority to pass enabling acts authorizing officials of the municipalities and counties to pass zoning and planning laws. It is my opinion that the City of West Point, which now does not have any charter right to zone the city, is without authority to zone the same until such authority is first given by an enabling act passed by the General Assembly.
It is my opinion that Paragraph 5, Section 7, Article 7 of the Constitution of 1945 authorizes municipal corporations of the State to own and operate revenue producing facilities such as are described by the acts of the G:neral Assembly approved March 31, 1937 and March 14, 1939. Sections 87-801 through 87825, 1943 Cumulative Pocket Part of the Annotated Code. You will note that Paragraph 3 of Section 87-802 restricts the municipalities to systems, plants, works, instrumentalities and properties used or useful in conn:ction with water systems and sewage systems. Paragraph 5, Section 7, Article 7 of the Constitution of 1945 included all of the projects included in the Act of 1937 as amended in 1939 and added thereto the right of a municipality to buy, construct, extend, operate and maintain gas or electric gen:rating and distribution systems, together with all necessary appurtenances thereof. I am inclined to the view that it is necessary for the General Assembly to pass an enabling act providing for the machinery for the issuance by a city of revenue producing certificates for th: purpose of buying, constructing, extending, operating and maintaining gas or electric generating and distribution systems, before the municipalities would have the right to issue such certificates. The Constitution provides that such certificates shall be authorized by a majority of those voting in an election held for the purpose of determining whether or not the same may be issued. I infer from this provision that it is the intention of this Paragraph of the Constitution that such an election should be held according to an act prescribing the manner of the election and the validation of the certificates.
Consider the rulings of the Suprem: Court in Hudson v. The Mayor, etc. of Marietta, 64 Ga. 287, Elliott v. Gammon, 76 Ga. 766, and City of Dawson v. Dawson Water Works Company, 106 Ga. 696.
I am of the opinion that the Act of 1937 as amended is not broad enough to provide the proper machinery for the issuance and validation of revenue producing facilities for the operation of gas and electric plants. I am of the further opinion that when a proper enabling act has been passed providing for the method of issuance and validation of such certificates by the political subdivision that such a subdivision can issue certificates of indebtedness to be retired solely from the revenue produced by the facility without the issuance of general obligation bonds by the city, or political subdivision. The Constitution of 1945 itself provides that the debts shall not be deem~d debts of, or debts created against the issuing political subdivision. I am of the opinion that the enabling act should follow very closely the Act of 1937 as amended together with a provision outlining the procedure for handling an election, determining the results, and method of validation.

418
NOTARIES PUBLIC-Appointment (Unofficial) The judgEs of the superior courts may appoint notaries public without requiring a certificate of character signed by two freeholders.
April 24, 1947 Hon. Dan J. O'Connor Clerk, Superior Court Augusta, Georgia
In answer to your long distance telephone call of this morning, I am pleased to give you the following information.
The question which you presented was whether or not under the new "Notary Public Law" it is mandatory to have a certificate of character signed by two citizens, stating the applicant to be of good moral character, attached to the petition for appointment.
Section 71-102 of the new law is as follows: "A notary public must be 21 years old or an attorney at law; a citizen of the Unit~:d States; a resident of Georgia; and of good moral character."
There is no other reference in the law to character or the necessity of having a certificate of character signed by two citizens, either recommending the applicant or vouching for his good moral character.
The old law, which was codified as Code Section 71-102 was as follows: "A notary public must bE 21 years old, or an attorney at law, and of good moral character."
Thus, either under the old or the new law, there was no requirement with reference to having two recommendees sign a certificate of character.
The new law states that the power to appoint notaries public is vestEd in the judges of the Superior Courts.
By executive order dated August 21, 1916, Governor N. E. Harris directed the State Librarian to obtain a certificate of character signed by two freeholders prior to issuing an appointment as Notary Public State at LargE.
It is probable that this accounts for the practice being adopted by most clerks of the Superior Courts before issuing an appointment for a County Notary Public.
However, it is my opinion, that the power to appoint notaries public is vested in the judges of the Superior Courts, and they may appoint notaries public in their discretion with or without any certificate of charactEr, as has been the practice of your County.
PARENT AND CHILD-Legitimacy; Adoption (1) There is a strong presumption in favor of the legitimacy of a child born during wedlock. (2) In the absence of convincing evidence of the illegitimacy of a child, the consent of tfte mother alone is not sufficient for its adoption, unless the father has abandoned the child or is otherwise incapacitated from consenting.
June 20, 1947 Hon. L. C. Groves, Director Department of Public Welfare
I am pleas~:d to acknowledge your letter of June 13th, in which you ask the following question:

419
"Is a child born to a married woman whose husband is indicated as not being the natural father of the child considered as legitimate according to the laws of this State?"
Section 74-101 of the Code provides as follows: "All children born in wedlock, or within the usual period of gestation thereafter, are legitimate. The legitimacy of a child thus born may be disputed. Where possibility of access exists, except in cases of divorce from bed and board, the strong presumption is in favor of legitimacy, and the proof should be clear to establish the contrary. If pregnancy existed at the time of the marriage, and a divorce is sought and obtained on that ground, the child, though born in wedlock, is not legitimate. The marriage of the mother and reputed father of an illegitimate child, and the recognition of such child as his, shall render the child ligitimate; and in such case the child shall immediately take the surname of his father." The above statute places a strong presumption in favor of the legitimacy of a child born in wedlock. While this legitimacy may be disputed, it would take clear and positivE: evidence to rebut the presumption in favor of the child's legitimacy. The mere fact that a husband was indicated as not being the natural father of the child would not be sufficient to rebut the strong presumption referred to in the above statute. It would take more than a mere indication to establish by law that a child born in wedlock was illegitimate.
In Richards v. The State, 55 Ga. App. 184, the Court in dealing with matters indicating that the husband was not the father of a child born in wedlock, held as follows:
"(3) ThE: mere testimony that the husband, then in life, said to a witness that the child was not his would not support a finding that the child was illegitimate. In fact these declarations, being hearsay and having no probative value, and being the only testimony that attacked the legitimacy of the child, a finding that the child was legitimate was demanded;...................."
From the above provisions of law, I am of the opinion that a strong presumption of legitimacy exists in favor of a child born in wedlock, and that it takes more than an indication to establish the fact that the husband is not the father of the child. It would require positive, cogent and clear evidence to rebut such a presumption.
You also ask the following question: "In adoption proceedings in Superior Court where the mother indicates that her husband is not the father of the child, should we consider the mother's statement sufficient legal proof or should we insist that a statemEnt be obtained from her husband either denying paternity or consenting to the child's adoption?" Section 74-403 of the Amended Code provides as follows: "Except as otherwise specified in the following sections, no adoption shall be permitted except with the written consent of the living parents of a child. In the case of a child 14 years of age, or over, thE: consent of such child also shall be required, and must be given in writing in the presence of the court." The exceptions referred to in the above statute do not apply to the question here presented, and will therefore not be referred to in this opinion.
In McComas v. Glendinning et al. 59 Ga. App. 234, the Court held: "The petition for the adoption of a child under fourteen years of age, which alleged neither the consent of both of his living parents nor facts constituting an

420
abandonment of the child by the parent not alleged to have consented, was subject to general demurrer and should have been dismissed."
The answer to the above question depends upon how strong the indication is that the husband is not the fathE:r of the child. Many facts and circumstances should likewise be considered, particularly whether or not the child was born during the period of wedlock. It would be my suggestion that since such a strong presumption is in favor of the legitimacy of a child born during wedlock, it would be the preferable practice to obtain an affidavit from the husband either denying paternity or consenting to the child's adoption under these circumstances. Of course if it could be shown that thE: reputed father had abandoned the child or was otherwise incapacitated from giving such, consent, then under Section 74-404 of the Amended Code his consent would be unnecessary.
On the other hand, if it is properly established that the child is illE:gitimate, then it would become unnecessary to obtain the consent of the father. Section 74-405 provides in this connection as follows:
"If the child be illegitimate, the consent of the mother alone shall suffice. Such consent, however, shall not be required if the mother has surrenderE:d all of her rights to said child to a licensed child-placing agency, or to the State Department of Public Welfare."
It is therefore my opinion in answer to your second question, that if the indication is not strong and positive that the husband is not the father of thE: child, an affidavit should be obtained frcm the husband either denying paternity or consenting to the adoption of the child. This would certainly be the safer practice to follow in such cases.
PARENT AND CHILD-Support (Unofficial) A stepfather owes no duty of support to the children of his wife by her former marriage unless he places himself in loco parentis.
January 7, 1947 Mr. William R. Smith 23 Ashmont Street DorchE:ster, Massachusetts
This will acknowledge your letter inquiring as to the liability of a stepfather for support of the mother's children by a former marriage, under Georgia law.
In the case of Wood v. Wood, eta!, 166 Ga. 519 (5), it was held: "A stepfather, as such, is not under obligation to support the children of his wife by a former marriage; but if he takes the children into his family or under his care in such a way that he places himself in loco parentis, he assumE:s an obligation to support them, and likewise a correlative right to their services." In the case of Edwards, Guardian, v. Addison, et al, 187 Ga. 756, at page 759, it was said: "A stepfather is not under a legal duty to support minor stepchildren.... 'Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child.' Code, Sec. 74-105. Upon the death of the father, the duty of supporting dependent minor children falls upon the mother... When thE: mother marries again, as in the instant case, the liability

421
of the mother to support her minor children by the former marriage is not changed, and the children must look to their mother, and not to their stepfather, for support."
These general rules are sometimes complicated in individual casts by various situations which arise in family relationships. For instance, where in a divorce decree custody of minor children is awarded to the mother, and she re-marries, upon her death the custody automatically reverts to the father, and not to the stepfather. Where the minor child has an estate of its own, sufficient for its support, the situation also may change; and there is also a provision in Georgia law that, under some circumstances a minor, upon reaching the age of fourteen, may choose his own guardian.
However, I am of the opinion, generally speaking, that there is ordinarily no legal duty of support resting upon a stepfather; but, under the principle that a gratuity once given remains a gratuity, where tht stepfather voluntarily assumes the duty of support, he cannot, as a general rule, repudiate that duty.
PENAL INSTITUTIONS-Convict Labor Felony convicts may be used by the State Highway Department for maintenance work upon the State-Aid system of roads.
May 29, 1947 Hon. J. C. Beasley Director, State Highway Department
You stated to me that you desire to make arrangements with the State Board of Corrections for the usEo of prisoners imprisoned at Tattnall to maintain State public roads over an area surrounding the prison, where such maintenance work can be economically carried on, and asked for my opinion as to the legality of such an arrangement.
Section 77-326 of the Code of 1933 provides as follows: "In addition to the provisions of section 77-325 for the disposition of felony convicts, the Prison Commission may arrange with the State Highway Department to work so many of such convicts upon any of the State-aid system of public roads in this State as can be Eoconomically worked, and the State Highway Department shall work upon such highways such portion of such convicts as the Highway Department can economically work, the Highway Department being authorized to provide for the housing, clothing, feeding, guarding, equipping, and otherwise taking care of such convicts so worked by the Highway Department, out of funds in its hands available for such purpose." This Section refers to Code Section 77-325, which provides for the disposition of prisoners, and provides for arrangement between the State Board of Corrections and the State Highway Department to work prisoners upon the State-aid system of public roads in the State. I am, therefore, of the opinion that it will be legal for the State Highway Department to work out arrangements with the State Board of Corrections for the use of prisoners to carry on maintenance work upon State-aid roads, where the same can be economically carried on.

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PENAL INSTITUTIONS-Convict Labor Convict labor may be used, under the control of county authorities, in the erection of a hospital by the county hospital authority.
July 24, 1947 Hon. C. A. Williams, Director State Board of Corrections
Your letter of July 9th received. You state that the City of Camilla is donating a certain tract of land with two brick buildings, and that the County of Mitchell is planning to levy taxes to provide the Mitchell County Hospital Authority with funds to build their hospital. You further statEo in your letter that the county authorities desire to use convict labor from Mitchell County Public Works Camp to raze the brick buildings and salvage the material. You request that I advise whether or not the employment of prison labor for such purpose in behalf of Mitchell County Hospital Authority would constitute a public work within the meaning of the law on which prison labor could be lawfully used.
Section 77-201 of the Code of 1933 in substance provides that misdemeanor prisoners sentenced to work on public works or roads shall be confined in a public works camp and the Commissioner of Roads and Revenues, where the prisoneors are confined may place them in the county or elsewhere to work upon the public works of the county.
Section 77-325 of the Code provides in part as follows: "All male felony convicts, except such as are required by law to be kept at the State farms, may be employed by the authorities of the several counties and municipalities upon the public roads, bridges, or other public works of said counties or municipalities, as hereoinafter provided." Said Section then goes further and prescribes a method of apportioning the convicts to the several counties. Under Section 77-331 it is provided in substance that no convict labor shall be used in competition with skilled mechanical free labor, and that it is the fixed policy of this State that the control and management of its prisoners, both felony and misdemeoanor, shall never pass from it and its public officials into the control and management of any private corporation or persons. While your letter fails to so state, it is presumed that the Mitchell County Hospital Authority is set up under and by virtue of the Hospital Authorities Act as codified in Chapter 99-15 of the Cumulative Pocket Part of the Annotated Code. The Act creates in and for each county and municipal corporation of the State a public body corporate and politic known as the Hospital Authority of such county or municipal corporation. Section 99-1505, Pocket Part Annotated Code, states "Every authority shall be deemed to exercise public and essential governmental functions and shall have all of the powers necessary or convenient to carry out and effEoctuate the purpose and provisions of the Act." This Section then outlines very broad powers which are given to the corporation. Under Section 99-1507, Pocket Part of Annotated Code, every authority is authorized to issue negotiable revenue anticipation certificates. The principal and interest are payable exclusivEoly from income or revenue derived from the operation of the authority, together with grants from the Federal Government or any instrumentality of the Government or other persons or corporations. Under Section 99-1508 of the Annotated Code it is provided "Certificates

423
of an authority are declared to be issued for an essential public and governmental purpose, and together with interest thereon and income therefrom, shall be exempt from all taxes."
Similar powers are given to the Housing Authority, a like corporation, created by virtue of Section 99-11 of the Pocket Part of the Annotated Code. The Housing Authority Act contains similar language as to public body, exercising public and essential governmental functions, and gives the Authority the power to issue revenue certificates, which are not taxable.
The Supreme Court in Williamson v. Housing Authority of Augusta, 186 Ga. 673 (8) held that the act exempting the revenue bonds from taxation was not unconstitutional; that the property of the Housing Authority and its bonds were exempt from taxation on the theory that it was public property and on the further theory that the organization was one of charitable purposE:s.
It is my opinion that the erection of a hospital by the Hospital Authority of Mitchell County would constitute a public work, which the authorities of the county would have the right to participate in, and I am of the further opinion that it would be legal for the county to use prison labor for the purpose of razing the brick buildings, salvaging the material, and clearing and making available the real E:state given to the Authority for the purpose of erecting thereon the hospital. Of course, the prison labor while at such work should remain under the control of the county authorities operating the county public works camp and should not pass to the control and management of any corporation or person.

PENAL INSTITUTIONS-Convict Labor (Unofficial) A county may permit the use of convicts in building or repairing a public school building in a municipality if the convicts remain under the control and management of the county authorities.

Ron. Will Ed Smith AttornE:y at Law Eastman, Georgia

September 8, 1947

I beg to acknowledge your letter of September 1, in which you request an opinion as to whether the county authorities would have the authority to allow convicts to repair or build a school building in the City of Eastman, Dodge County.

Section 77-201 of the Code of 1933 provides as follows: ""\Vhen misdemeanor convicts shall be sentenced to work in a chain gang on the public works or roads, or shall bE: confined in jail for nonpayment of fines, the ordinary, county judge, or board of commissioners of the county where the convictions were had, or where the convicts are confined, may place them, in the county or elsewhere, to work upon the public works of the county,

in chain gangs or otherwise." Section 77-325 of the Code provides in part as follows:

"All male felony convicts, except such as arE: required by law to be kept at the State farms, may be employed by the authorities of the several counties and municipalities upon the public roads, bridges, or other public works of said counties or municipalities, as hereinafter provided."

424
This Section further prescribes the method of apportioning the convicts to the several counties.
Section 77-331 of the Code providts as follows: "No convict labo~ shall be used in competition with skilled mechanical free labor, nor under any contract by the terms of which the contractor is interested in the quantity of work a convict may be required to do per day; it being the fixed policy of this State that the control and management of its convicts, both felony and misdemeanor, shall never pass from it and its public officials into the control and management of any privatt corporation or person." It is my unofficial opinion that the county authorities under the above sections would have the right and authority to allow the use of convicts in the repairing or building of a public school building within the City of Eastman. I wish to state however, that the work performed by the convicts would be nects sarily under the strict supervision of the county authorities. The county authorities would not have the authority to turn the convicts over to a municipality or to any other person or corporation, but the county must retain the exclusive management and control of the convicts whilt engaged in the work for the municipality. Section 6, Chapter 2-59, on page 87 of the Pocket Supplement of the Code of 1933, in Section 2-5901, Par. 1, sub-division (a) of the new Constitution of Georgia, reads as follows: "The State, state institutions, any city, town, municipality or county of this State may contract for any period not excteding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake." It is my opinion unofficially that the use of convicts by the county in the rtpairing or building of a public school building in the City of Eastman is authorized. As above stated, the prison labor while at such work must remain and be under the control of the county authorities operating the county public works camp, and must not pass to the control and management of any corporation or person.
PENAL INSTITUTIONS-Convict Labor State highway camps may be established under the rules and regulations of the State Board of Corrections for the use of felony convicts by the State Highway Department in the maintenance of the State-aid system of roads.
September 25, 1947 Hon. M. E. Thompson Acting Governor
In your letter of rtcent date you requested that I advise whether or not you had the power, by executive order, to establish State Highway convict camps for maintenance of State Highways. A similar request was received from Mr. J. W. Frye, Assistant State Highway Engineer.
Section 77-201 of the Code of 1933 provides in substance that misde-

425
meanor convicts who are given chaingang sentences, or who shall be confined in jail for nonpayment of fines, may be placed by county authorities in the county or elsewhere, to work upon the public works of the county, in chain gangs or otherwise. Subsequent legislation has changed the name of chain gangs to public work camps. This Section is also superseded by Section 11 of the Act approved February 1, 1946, (Ga. L. 1946, pp. 46-56).
Code Section 77-325 of the Code of 1933 provided for the disposal of male felony convicts, and for their employment on public works of counties or municipalities. Under Section 13 of the Act approved February 1, 1946, (Ga. L. 1946, pp. 46-56), the Board of Corrections has authority to approve the establishment of county public works camps and abolish such camps. Each county maintaining a county camp shall receive a quota of prisoners in accordance with such method or apportionment as may be established by the State Board of Corrections.
Section 77-326 of the Code of 1933 provides as follows:
"In addition to the provisions of section 77-325 for the disposition of felony convicts, the Prison Commission may arrange with the State Highway Department to work so many of such convicts upon any of the State-aid system of public roads in this State as can be economically worked, and the State Highway Department shall work upon such highways such portion of such convicts as the Highway Department can economically work, the Highway Department being authorized to provide for the housing, clothing, feeding, guarding, equipping and otherwise taking care of such convicts so worked by the Highway Department, out of funds in its hands available for such purpose."
Under Section 95-1717 of the Code of 1933 the State Highway Board was authorized to apply to the Prison Commission for the quota of convicts that any county in working convicts may have been entitled to, and it was made the duty of the Prison Commission to allot said convicts to the Highway Department for the purpose of constructing public roads and to appoint wardens, physicians and guards as may be necessary to carry out this purpose.
Section 95-1718 of the Code provided that any one or more counties would have the right to contract with the Highway Board to use the quota of convicts to which such county was entitled in the construction of any portion of the State-aid road system, and the Highway Board was authorized to purchase such machinery and equipment as was necessary for the purpose of equipping such road gangs as they may organize and to pay the salary of such wardens, physicians and guards as was necessary to carry into effect the provisions of law.
Under Section 77-326 of the Code, as above quoted, the Highway Department was authorized to provide for the housing, clothing, feeding, gua~ding, equipping and otherwise taking care of such convicts worked by the Highway Department out of funds in its hands available for such purposes.
The 1943 Act creating the State Department of Corrections authorized and directed the Director of Corrections to institute a reform of the prison system. The Director of Corrections, as one of the directed reforms, was required to abolish all State Highway road camps as soon as practicable. Had this Act remained of force and effect, it would have, in my opinion, prevented the establishment of new highway road camps, as it was an expression of the

426
General Assembly that the prison system should be reformE:d and that such reformation should include the abolishment of all State Highway camps.
However, the 1946 Act, (Ga. L. 1946, pp. 45-56), in Section 30 repE:aled the 1943 Act in its entirety. Section 11 of the 1946 Act gives the State Board of Corrections complete supervision and control of all pocrsons convicted of crime, misdemeanor or felony, and the Board is given the authority to assign, transfer and place such persons in public work camps, State Highway camps and other institutions of confinement.
In Section 12 certain forms of punishment are prevented and prohibited in public work camps and other institutions of confinement operated under authority of the State Board of Corrections.
Under Section 18 the State Board of Corrections shall establish and fix qualifications of wardens, guards and correctional officials. It provides that the warden, guards and employees in county public work camps and Highway camps shall be chosen by the proper county and Highway officials, subject to the approval of the State Board of Corrections.
Under Section 6 of the 1946 Act the State Board of CorrE:ctions is given authority to adopt, establish and promulgate rules and regulations governing the transaction of business of the penal system, and the administration of the affairs of the penal system in the different institutions coming under authority and supervision of the Board of Corrections. The Board of Corrections shall adopt rules governing the assignment, housing, working, feeding, clothing, treatm!':nt, discipline, rehabilitation, training and hospitalization of all prisoners coming under its control. The Board of Corrections, is also by said Section, given power to adopt rules and regulations governing the conduct of, or the welfare of the employees of the State institutions operating under its authority and the county public works camps and the State Highway camps operating under its supervision.
I am, therefore, since the repeal of the 1943 Act, of the opinion that State Highway camps may be established for construction or maintenance work upon the State Highways within the State system, whocre such camps meet the rules and regulations of housing, working, feeding, and such other regulations as may be adopted and put into effect by the State Board of Corrections by virtue of and power under the Act of 1946.
PENAL INSTITUTIONS-Custody of Prisoners The Director, State Department of CorrE:ctions should require a prisoner to be treated for venereal disease.
September 20, 1945 Hon. F. R. Hammack, Director State Department of Corrections
I am sorry that your letter of August 28th has not been answered. The reason is that the Assistant Attorney General to whom I refE:rred the matter has been ill and away from the office, and has just returned.
Section 77-359 of the Code of Georgia of 1933, Pocket Supplement, reads as follows:
"The Department of Corrections shall bE: under the exclusive control of the Director and all the duties, powers, and rights heretofore imposed by law

427

upon the State Board of Prisons are hereby transferred and delegated to the

Director of Corrections."

This section gives you absolute control of th: prisoners of the State of

Georgia convicted of felonies and misdemeanors, subject to the laws now in

force in the State. You also have the power, and it is made your duty under

the law, to promulgate such rules and regulations as are, in your discretion,

necessary to carry out the purpose of the Act creating the State Board of

Corrections.

Section 77-363 (18), reads as follows:

"Inmates infected by disease shall be segregated, hospitalized and treated."

Code Section 88-504, in regard to venereal diseases and the tr:atment of

prisoners who are infected, reads as follows:

'

"All persons who shall be confined or imprisoned in any State, county

or city prison may be examined and treated for venereal disease by the health

authorities or their deputies. Th:' State, county and municipal boards of

health shall have authority to take over such portion of any State, county

or city prison as may be necessary for a board of health hospital, wherein all

persons who shall have been confined or imprisoned and who are suffering with

venereal disease at the time of the :xpiration of their terms of imprisonment

shall be isolated and treated at public expense until cured, or in lieu of such

isolation, such person may, in the discretion of the Board of Health, be required

to report for treatment to a licensed physician or submit to treatment pro-

vided at public exp:nse as provided in section 88-503."

You will note that Section 77-363 (18) aboV:' quoted provides that in-

mates shall be segregated, hospitalized and treated, and is mandatory.

It is therefore my opinion that you, or the warden in charge, have the

legal right to take whatever steps are necessary to administer to this man

the treatment for syphilis. In fact, I think under th:' law, it is not only your

privilege, but your duty to do this.

PENAL INSTITUTIONS-Custody of Prisoners The responsibility for returning an insane fugitive convict to the State is on the State Department of Corrections.
October 8, 1945
Hon. F. R. Hammack, Director State Department of Corrections
Your letter of October 5th received. You requ:st that you be advised whether or not it is the responsibility of your Department, or of the State Welfare Department to return the above named fugitive from California to Georgia. You outline in your letter that the subject had been convicted of a felony in Cobb Superior Court, that whil:' serving his sentence he was found to be insane, was tried by the Ordinary of Cobb County and committed to the Milledgeville State Hospital from which he escaped, and that he has recently been apprehended by the Police Department in California.
Section 77-401 of the Code of 1933 provides as follows:
"If a convict sentenced to the penitentiary shall become insane, he shall be removed to and kept at the prison farm during the term for which he may have be:n sentenced, or until such insanity is cured, and the Prison Commission

428
shall make such provisions for the care, maintenance, and medical treatment of such insane convict as are proper in such cases."
This Section of the Code is the only statute making any provision for the disposition of a convict who becomes insane while serving a term in Prison where the punishment is less than that of capital punishment. This Section requires that insane convicts be removE:d to and kept at the Prison Farm during the term for which they may have been sentenced, or until sanity is restored, and it directs the Prison Authorities to make provision for the care, maintenance, and medical treatment of such a prisoner.
Section 49-604 of the Code of 1933 grants to the Ordinaries of the countiE:s authority to issue lunacy commissions. In the case of Baughn v. Wiley, ordinary, 98 Ga. 364, it was htld that the Ordinary did not have authority to issue a writ of lunacy to pass upon the sanity of a person found guilty of murder or to commit such a person to the Milledgeville State Hospital.
In McGriff, ordinary v. The State, 135 Ga. 259, it was ruled that the ordinary did not have jurisdiction to issue a commission to examine into the question of sanity and to make return thereon of a person under indictment for murder.
I am of the opinion that the line of rE:asoning applied by the court in the two stated cases would apply in all cases where the investigation is being held to determine the sanity of a prisoner held by the authorities of the State under a judgment rendered by a court of competent jurisdiction. I am of the opinion that the ordinary can not take jurisdiction over a person, whtre the person is restrained under a writ from some other court. The only provision of law that I can find for dealing with insane convicts is that provided for in Section 77-401 of the Code which is quoted above.
This is in line with an opinion rendered by former Attorney General Yeomans on October 23, 1934 (Opinions of the Attorney General, 1933-34, p. 391) and with the opinion rendered by Judge T. Grady Head while Attorney General addressed to you and dated April 18, 1945. It is, therdore, my opinion that the responsibility for returning this prisoner to the Georgia prison would fall upon the State Department of Corrections, and that the Department of Public Welfare is in no way responsible therefor.
PENAL INSTITUTIONS-Custody of Prisoners The State Board of Corrections may transfer a prisoner found to be insane by a board of examining physicians to the Milledgeville StatE: Hospital.
March 5, 1946 Hon. F. R. Hammack, Director State Board of Corrections
Your letter of March 4th received. You state that a prisoner has been found to be insane by the board of examining physicians created by executive order, and requE:st that I advise whether or not he can be transferred to the Milledgeville State Hospital for treatment.
You refer to an opinion rendered October 8, 1945, wherein it was held that the ordinary did not have jurisdiction and could not take jurisdiction to determine the sanity of a person being held as prisoner under a judgment of a court of competent jurisdiction. I adhere to thE: opinion to the effect that the ordinary does not have jurisdiction to try prisoners and commit them to the

429
State Hospital. The opm10n was in line with and adhered to an opm10n rendered by Judge T. Grady Head while he was serving as Attorney General on April 18, 1945, and addressed to you as Director of the State Department of Corrections. Judge Head in his opinion followed and adhered to an opinion rendered by former Attorney General, M. J. Yeomans on October 23, 1934. (See, Opinions of the Attorney General, 1933-1934, p. 391).
In the opinion of October 8, 1945, it was stated that the only provision for handling insane convicts was that provided in Section 77-401 of the Code of 1933. Since that date the General Assembly has authorized the State Board of Corrections to transfer mentally diseased inmates from the Georgia State Prison to the State Hospital for Insane at MillE:dgeville as provided for in Section 9 of an Act approved February 1, 1946, being an Act to create and provide for a State Board of Corrections and to define their duties. Section 9 of said Act reads as follows:
"The State Board of Corrections is authorized to transfer mentally diseased inmates from the Georgia State Prisons or othtr institutions operating under its authority, to the criminal ward or facility of the State Hospital for Insane at Milledgeville, Georgia, provided the inmate is adjudged to be mentally diseased to such extent that his transfer is found to be advisable by a Board of Examining Physician; creatE:d by Executive Order of the Governor."
Under Section 9, you have full and ample authority for transferring the prisoner to the State Hospital at Milledgeville for treatment, since he has been adjudged to be insane by the board of examining physicians as provided for in Section 9 of the Act.
PENAL INSTITUTIONS-Custody of Prisoners The Director, State DE:partment of Corrections, may transfer a prisoner under 18 years of age to the Georgia State Training School for Boys with the concurrence of the governing authorities of the School.
April 4, 1946 Hon. C. A. Williams, Director State Board of Corrections
Your letter of March 30, with respect to the named subject is acknowledged. Please permit me to call to your attention Code Section 77-346 which in part provides: "The Director of Corrections may transfer any prisoner under 18 years of age from the penal institution in which he is now serving to the Georgia State Training School for Boys to serve as if he had been regularly committed to said institution by the courts of this State; Provided, howE:ver, the governing authorities of the Georgia State Training School for Boys shall concur in the suitability of such person as potential trainee before the Director of Corrections shall have power and authority to transfer any prisoner under 18 years of age." The established rule in Georgia with rE:spect to when one becomes responsible for the commission of a crime is: Persons between the ages of 10 and 14 are not presumed to intend the consequences of their acts. This is a rebuttable presumption, however. The duty is upon the State when prosecuting one betweE:n these ages to first show that he is capable of having criminal intent.

430
After the age of 14, a person is presumed to be capable of having criminal intent. One charged with a crime who is over 14 years of age can rebut this presumption.
In Code Section 26-301, it is provided: "A person shall be considered of sound mind who is neither an idiot, a lunatic, nor afflicted with insanity, and who has arrived at the age of 14 ytars, or before that age if such person know the distinction between good and evil". It is therefore my opinion that you have the authority to transfer the named subject to the Georgia State Training School for Boys, provided that the governing authorities for that institution shall concur in the suitability of the s!lbject as a potential trainee. It is my further opinion that since, as you stat.~ in your letter, the above subJect has betn duly convicted and is now in ye>ur custody under a sentence of the Superior Court of Crisp County, all provisions of law have been complied with and that he was found as a condition precedent to his conviction to be capable of knowing the distinction between good and evil.
PENAL INSTITUTIONS-Custody of Prisoners (1) The State Board of Corrections may not assume custody of a person who has been committed to confinement by a juvenile court, but not convicted of a crime. (2) The State Board of Corrections may establish juvenile correctional institutions for convicts between tht ages of 18 and 21.
April 4, 1946 Hon. C. A. Williams, Director State Board of Corrections
Before you assumed directorship of the State Board of Corrections, your predecessor in office made a request for an official opinion wherein he asked the following questions:
a. Does the State Board of Corrections have authority under law to assume custody of persons committed to confinement by the juvenile courts of this State?
b. Does the State Board of Corrections have authority to establish juvenile correctional schools and to receive in such school individuals who are presently confined under commitments of the juvenile courts of this State and to receive and assume authority ovtr persons who may be committed by said courts in the future?
There is no provision of Georgia law which specifically authorizes the State Board of Corrections to exercise any authority or control over persons committed to confinement by the juvenile courts of this State. Within legal contemplation, such persons are not serving a sentence. In Code Section 77602, the State Board of Corrections does have authority to receive juvenile offenders who have been committed to confinement by the courts of this State when the following contingency occurs:
"All male persons between 16 and 18 years of age, who have bten duly convicted in any of the courts of this State of crimes not punishable by death or imprisonment for life, may, in the discretion of the judge having jurisdiction, be committed to the Georgia State Training School for Boys, with a

431

provlSlon in said sentence providing that should the person be committed, in

the discretion of the governing authorities of the Georgia State Training

School for Boys, prove to be uncontrollable through ordinary means of dis-

cipline or who, by reason of his conduct or attitude, should be unsuited to

benefit from the opportunities at the Georgia State Training School for Boys

may be retransferred by the governing authorities at the Georgia State Train-

ing School for Boys to the State Prison at Tattnall ..".

You will note that this Chapter deals only with those persons who have

been sentenced. Persons who are 16 years of age and under may be committed

by the juvenile courts of this State to confinement even though they have not

been convicted of a crime and even though the court has not imposed a sen-

tence. Persons confined under a commitment of a juvenile court cannot lt.~a.lly

be transferred to Tattnall.



By Code Section 77-346, the Director of Corrections is authorized to plo-

vide such training and to provide such camps as may be deemed best for the

proper training and rehabilitation of youthful convicts between the ages of 16

and 21, and to segregate such convicts from contact with the confirmed pris-

oners. The Director of Corrections may transfer any prisoner under 18 years

of age from the penal institution in which he is now serving to the Georgia

State Training School for Boys to serve as if he had been regularly committed

to said institution by the courts of this State.

In Code Section 77-368, it is provided that the Director of Corrections in

his supervision and control of all convicts shall have the right and authority

to assign, transfer, and place any and all convicts in such prison camps, public

work camps and other places of detention for convicts located in this State.

You will observe that in all of these Code Sections the word "convict"

is used. The Legislature by the use of the word "convict" no doubt meant

such ptrsons as were duly sentenced by a court for the commission of a crime

for which such persons have been convicted. The term "other places of deten-

tion" of course referred to the Georgia Training School for Boys and Girls.

Both of these places are P.J.aces of detention for convicts. Both of these places

are also places of detention for juveniles committed to confinement by the

juvenile courts of this State.

It is, therefore, my opinion that the State Board of Corrections has au-

thority only to receive such person as is duly sentenced by a court for the

commission of a crime and who, by virtue of such sentence, has become a

convict. Ballentine's Law Dictionary at page 287 defines convict to mean "A per-

son who by reason of having been convicted of violating the penal laws has

forfeited for a certain time his liberty or right of locomotion, and who is by

law subj'ect to confinement and labor for a specified time". See also 21 R.C.L.

1167.

It is my further opinion that the State Board of Corrections has authority

to establish correctional institutions and to provide training for the rehabilita-

tion of youthful convicts between the ages of 16 and 21 years and that they

may transfer any convict now in their custody and control or who may here-

after be in their custody and control who has been sentenced by a court for

the commission of a crime to such correctional institutions provided such con-

vict is under 21 years of age.

432
PENAL INSTITUTIONS-Custody of Prisoners The trial board at a prison may not adjudicate the property rights of an inmate but may confiscate, money admittedly derived from a violation of prison rules and place it in the prison athletic fund.
May 10, 1946
Hon. C. A. Williams, Director State Board of Corrections
Yo1:r letter of May 7, with respect to $460.00 claimed by an inmate, is acknowledged.
You ask my opinion as to the legal correctness of the procedure followed by the Trial Board at Tattnall Prison in making disposition of the disputed fund. I am convinced that the Trial Board, as constituted, cannot adjudicate property rights of inmates. It is my judgment that its authority is limited to determining as an administrative matter questions involving the violations of the prison rules.
I note that it is the custom of the prison authorities to confiscate any mone,y held by a prisoner which is made by him while in prison in his dealings with other prisoners when such dealings are in violation of the prison rules. I note that the said inmate admits that part of the $460.00 was derived from gambling with other inmates. This is a violation of a prison rule. He also admits that some of the money was derived from exorbitant interest rates on money he loaned to other inmates. Since all money possessed by a prisoner is placed to his credit and is subject to withdrawal by him in amounts not to exceed $4.00 per week, the money derived from this source could have been in violation of prison ruleos.
He also admits that some of the money was derived from his operation of the prison commissary, which was a duty assigned to him as a prisoner. Since the commissary is operated by the prison for the welfare of all the prisoners and since any profits derived from its operation go into the athletic fund, which in turn is used for the purchase, of athletic equipment for use of the prisoners, I do not believe that a prisoner has any rightful claim over any of the profits which he might have accumulated while working in the prison commissary.
The total amount of money admitted by him to have been accumulated in violation of the prison rules is $160.00. Since this amount was admittedly made by the inmate, while in violation of the prison rules, I believe the administrative officials of the prison are authorized to place this amounj; in the athletic fund for the common use of all the prisoners in purchasing athletic equipment and in carrying on the athletic program of the prison.
The inmate claims that $300.00 of the $460.00 was money he possessed when he went into the commissary and that none of this amount was derive,d out of or gained by him while violating prison rules. It is true that it is a violation of the prison rules for an inmate to have in excess of $4.00 in his physical possession; however this fact would not authorize the officials of the prison to confiscate any amount found on a prisoner in excess of $4.00. They can, however, remove any money in excess of $4.00 from the physical possession of a prisoner and place, it to his credit for withdrawal by him in accordance with prison rules.

433
I am of the opinion that the $160.00 above noted can rightfully be placed in the athletic fund, but that the $300.00 should be placed to the prisoner's credit for withdrawal by him in accordance with prison rules.
PENAL INSTITUTIONS-Custody of Prisoners The State Board of Corrections is not liable for the medical expenses incurred for a prisoner prior to his release to the Board by the county.
November 18, 1946 Hon. J. B. Hatche:tt Assistant Director State Board of Corrections
This will acknowledge your letter of November 13, requesting an opmwn as to whether or not the State is responsible for the hospital expenses and doctors' fees where a prisoner, while being held in a county jail suffering an attack of appendicitis, was carried to the hospital for an emergency ope:ration, all of which took place before said prisoner was released to the State Board of Corrections.
In connection with this question, I wish to quote the following Code Sections:
"27-2522. Convicts confined in jail until sent for by penitentiary guard.When any person shall be convicted of an offense which subjects him to confinement in the: penitentiary, it shall be the duty of the presiding judge, by his sentence, to orde:r the convict into custody, to be safely kept in jail; or if there be no jail in the county, then in the nearest jail, or under a suitable guard, until he shall be demanded by a guard to be sent from the penitentiary for the purpose of conveying him to the penitentiary.
"27-2523. Clerk to notify Prison Commission of sentence, etc.-The clerk of the superior court of the county where such person may be: convicted and sentenced shall notify the Prison Commission immeUiately thereafter, by mail, of the conviction and sentence, and that the convict is detained in the county jail, or under guard, subj'ect to the order of the superintendent."
"27-2524. Convicts conveyed to penitentiary by guard.-Such convict shall, as soon as possible after conviction, together with a copy of the record of his conviction and sentence, be safely conveyed to the penitentiary by a guard to be sent therefrom for that purpose, and therein be safely kept during the term specified in the sentence of the court."
It is the responsibility of the State as defined in Section 77-363 (7) which reads as follows:
"Central receiving stations for prisoners sentenced to the penitentiary shall be provide:d and established. All transportation expenses of prisoners to and from such receiving stations shall be paid by the State."
It is my opinion that the expenses incurred prior to the actual release of a prisoner to a guard for transfer to the State penitentiary are not a liability of the State Board of Corrections, and are not payable by said Board.

434
PENAL INSTITUTIONS-Custody of Prisoners Neither the State Board of Pardons and Paroles nor the State Board of Corrections may order a prisoner under death sentence transferred to another county for an examination into his sanity until his delivery to the State Board of Corrections.
December 17, 1946
Hon. Ed B. Everett, Chairman State Board of Pardons and Paroles
You requested that I advise whether or not the Pardon and Parole Board, or the State Board of Corrections, had any jurisdiction over a person convicted of a capital offE;nse and given the extreme penalty, where such a person remains in custody of the sheriff of the county where convicted, for the purpose of ordering such a prisoner transferred from the county to another for the purpose of having a physical examination made to determine the sanity of such a prisoner.
Section 27-2512 of the Code of 1933 provides, as amended, that all persons convicted of a capital crime and who shall have imposed upon them the sentence of death, shall suffer punishment by electrocution. This Section requires the judge imposing the sentence to direct the defendant to be delivered to the Director of Corrections for electrocution at such penal institution as may be designated by the Director. Section 27-2514 of the Code provides for the time and mode of conveying such a prisoner to the penal institution for carrying out the sentence. Under this SE;ction the sentence of death shall be in writing, shall be filed with the papers in the case, and a certified copy thereof shall be sent by the Clerk to the superintendent of the State penitentiary, not less than ten days prior to the time fixed in the sentence for the execution of the same. This Section makes it the duty of the sheriff of the county in which such convicted person is sentenced, together with one deputy or more, to convey such convicted person to the penitentiary not less than twenty nor more than two days prior to the time fixed for the execution of such condemned person, unless otherwise directed by the Governor, or unless a stay of E;Xecution has resulted from appeal or other order of a court of competent jurisdiction. It is also provided in said Section that the judge of the Superior Court, or if he is not available, the ordinary of the county shall give approval of the number of guards necessary in transporting the person to the State penitentiary. The expense of transporting such a person to the penitentiary for the purpose of electrocution shall be paid by the ordinary or other fiscal authorities of the county.
Section 27-2518 of the Code provides that where the date for the execution of a person has passed by reason of a supersedeas or a respite by the Governor, or for any other reason, the judge of the Superior Court of the county whHe the case was tried shall pass an order in term time or vacation fixing a new date for the execution of the original sentence.
From the above cited Code Section I am of the opinion that a person in the custody of the sheriff, who has not actually been transported to the penitentiary and delivered to the Director, remains with the Superior Court and that the Pardon and Parole Board or the State Board of Corrections would have no jurisdiction, authority or powH to pass any order directing such a person to be transported to another place for physical examination. Should

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such an order be granted by anyone, it would, in my opinion, be granted by the judge of the Superior Court in his discretion.
PENAL INSTITUTIONS-Custody of Prisoners (1) The State Board of Corrections has no jurisdiction over persons sentenced by a police or recorder's court for violation of a municipal ordinance. (2) The Act vesting jurisdiction in the Police Court of Savannah to take pleas of guilt in misdemeanor cases is unconstitutional.
May 14, 1947 Hon. C. A. Williams, Director State Board of Corrections
I have your letter of May 8th, in which you request my opm10n as to whether the State Board of Corrections has jurisdiction over misdemeanor convictees from the Police Court of Savannah.
Section 11 of the Act creating the State Board of Corrections (Ga. L. 1946, p. 46, 50) provides as follows:
"From and after the passage of this Act all persons convicted of crime, either misdemeanor or felony, in any courts of this State, shall be by the Courts first assigned to the State Board of Corrections for specific assignment. The State Board of Corrections is hereby given complete supervision and control of all persons convicted of crime, misdemeanor or felony, in the Courts of the State. . . ."
The first sentence of the above Act would seem to embrace even a Police or Recorder's Court, but the second sentence clarifies the apparent intention of the Legislature by using the words, "in the Courts of the State". Therefore, it is obvious that the State Board of Corrections has jurisdiction over all persons convicted in the courts of the State; that is, State Courts.
So the first question to be determined is whether the Police Court of Savannah is a State Court.
In Connerat v. City of Atlanta, 7 Ga. App. 589, 592, the Court held that the Recorder's Court of Atlanta is an inferior Court.
Code Section 24-101 states: "Judicial powers, where vested.-The judicial power is vested in such tribunals as are created by the Constitution, and such other inferior courts as are or may be established by law, and such persons as are or may be specially invested with powers of a judicial nature". But the Courts have universely held that Recorder's Courts can only sentence offenders against municipal ordinances, and have no jurisdiction except as a commitment court over State offenses. In Stembridge v. Wright, et al., 32 Ga. App. 587, the Court held that in no event could a Recorder assess a fine against a person for a violation of a State statute. The Police Court of Savannah was created by statute and not by constitutional amendment as in the cases of certain municipal courts. Code Section 27-423 provides: "Courts of municipal corporations may commit offenders.-Any mayor, recorder or other proper officer presiding in any court of a municipal corporation: shall have authority to bind over, or commit to jail, offenders against

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any criminal law, whenever, in the course of an investigation before such officer, a proper case therefor shall be made out by the evidence."
Code Section 69-705 provides: "Powers of police-court recorders and judges of recorders' courts in criminal cases.-All police-court recorders and judges of all recorders' courts in this State shall have and are hereby given the same powers and authorities as ex-officio justices of the peace in the matter of and pertaining to criminal cases of whatevtr nature in the several courts of this State". Thus it would appear in a broad sense only that a Recorder's Court is a State Court, but not one which has authority to convict persons for State misdemeanors or felonies, and therefore one whose convictees do not come under your supervision and control. The second question that presents itself is whether or not the Police Court of Savannah has authority to convict persons for misdemeanor offenses. Section 8 of Georgia Laws 1937, page 2095, in an Act headed "Savannah Taxing Powers", and entitled "An Act to amend the charter of the mayor and aldtrmen of the City of Savannah, and the several Acts amendatory thereof, and relating and supplementary thereto; and for other purposes", at page 2098 provides:
"Section 8. Recorders Court Jurisdiction Extended. Be it further enacted, That the recorder of the City of Savannah, sitting as judge of the police court of Savannah, shall have authority and jurisdiction ... to take pleas of guilt in misdemeanor cases and pass judgment thereon where the defendant is brought before him on commitment hearing and waives the right to a trial in the city or Superior Courts. Provided, that all fines from State offenses shall be paid into the county treasury."
In Richter v. Jordan, Recorder, 184 Ga. 683, this Section granting the Savannah Recorder extended jurisdiction was attacked by a writ of prohibition against the Savannah Recorder from taking jurisdiction of persons charged with misdemeanors and imposing punishment therefor, claiming the authority granted in the Act to do so was unconstitutional. The Court dismissed the petition, stating that the petitioner as a citizen did not have such an interest as would entitle him to the writ. It did not pass on the constitutionality of the statute, and so left the question open. No subsequent case has been found on the point.
However, in Grant v. Camp, 105 Ga. 428, the Court held that the Legislature could not create a Municipal Court and give it jurisdiction of State offenses. The Court stated the question involved as follows:
"Intending simply to create a Municipal Court, could the Legislature, under the Constitution of this State, confer upon such Court jurisdiction over misdemeanors committed in violation of State laws, and the trial of which belongs exclusively to State Courts? ... Among the provisions of the Constitution there is one that laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacttd in any case of which provision has been made by an existing general law. At the time of the passage of the Act creating the Court, there was also in force a general law conferring upon State Courts jurisdiction to try all offenses against the State. This being true, the Legislature could not, by amending the Charter of a city, take away the jurisdiction of the State Courts over misdemeanors committed in the city and confer it upon a municipa: or police court. . . . We

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think that the Legislature had no power, under the Constitution, to so amend the Charter of a city as to create a special court and confer upon it jurisdiction to try offenses against the laws of the State. This is especially true in the present case, because the title of the Act gives no intimation on the part of the draftsman or on the part of the Legislature to confer such jurisdiction upon this Court."
The above case, Grant v. Camp, was a full bench decision, which has never been overruled. Therefore, it would appear that the Act of the Legislature conferring jurisdiction on the Police Court of Savannah to accept pleas of guilt in misdemeanor cases and pass judgment thereon is unconstitutional.
PENAL INSTITUTIONS-Custody of Prisoners The State Board of Corrections may not authorize the inspection of personal documents and papers of a prisoner, in the custody of the warden, without the consent of the prisoner.
June 18, 1947 Hon. C. A. Williams, Director State Board of Corrections
This will acknowledge your letter attaching thereto a Jetter from Mr. Owen H. Page, Jr., Attorney, Savannah, Georgia, which raises the question as to whether or not the State Board of Corrections has the authority to authorize the inspection of the personal documents and papers of a prisoner, where the papers and documents are in the custody of the Warden of the prison or institution.
I have carefully studied the authorities and find no cases dealing with the question presented. The Constitution of Georgia guarantees the right of the people to be secure in their persons, houses, papers and effects, again8t unreasonable searches and seizures. The Jaw is very jealous of the rights of a prisoner during the confinement of that prisoner, and it is my opinion that the State Board of Corrections would have no authority to authorize anyone to examine the personal documents and papers of a prisoner while serving a sentence without the consent of the prisoner. To allow such a procedure would deny to the prisoners the rights given them by the Constitution and the laws of the State of Georgia.
There are legal means by which the personal documents and papers of a prisoner or of any person may be subject to examination and no authority of your Board is necessary to accomplish this purpose.

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PENAL INSTITUTIONS-Pardons and Paroles (1) The Criminal Court of Fulton County may revoke, for breach of conditions, a conditional pardon granted by the Governor, in those cases over which it had original jurisdiction. (2) Form of order revoking conditional pardon approved. (3) A person may be compelled to serve the unserved portion of his sentence although his conditional pardon is revoked after the date on which his sentence as fixed by the court would have E:xpired.
September 18, 1945
Bon. F. R. Hammack, Director State Department of Corrections
This will acknowledge your letter of August 31, in which you request an opinion on three distinct matters, as follows:
(1) Has the Criminal Court of Fulton County the authority, under Georgia laws, to revoke a "conditional pardon" granted by the Governor?
(2) WhethE:r the order of the judge revoking the "conditional pardon" complies with Georgia laws.
(3) Whether one who has been at liberty under a "conditional pardon" can be compelled to serve out the balance of the unserved sentence, even though the breach of the conditions contained in the pardon and the revocation of the "conditional pardon" occurs after the date upon which the sentence as fixed by the court would have expired.
The Criminal Court of Atlanta was first established in 1856. The statute creating the court gave it concurrent jurisdiction with the superior courts over all minor offenses committed within the corporate limits of Atlanta. The Acts of 1856, Page 245, Section 22, defined minor offenses as being those which did not subject the offender to loss of lifE:, limbs or member or confinement in the penitentiary. This is the definition of a misdemeanor under our more modern statutes.
In 1857, the Criminal Court of Atlanta was abolished. In 1871 the City Court of Atlanta was established; and under the Acts of 1871, Page 57, it was given criminal jurisdiction concurrent with that of the superior courts over all minor offenses which occurred within the corporate limits of thE: City of Atlanta. Minor offenses under this statute were defined as those offenses which did not subject the offenders to confinement in the penitentiary or death.
In the Acts of 1890-91, Page 935, through Page 939, th& Criminal Court of Atlanta was re-established. This Act amended the Act of 1871, which created the City Court of Atlanta. The effect of this amendment was to take the criminal jurisdiction away from the City Court of Atlanta and to create a Criminal Court of Atlanta. This Act extended the jurisdiction of this court to comprise the whole of Fulton County and gave this court concurrent jurisdiction over all criminal cases "not exclusivE:ly cognizable in the superior courts thereof". It also provided that the judge of this court, in order to qualify, should be a practicing lawyer.
The Acts referred to above have been amended several times, but th& last Act which referred to its jurisdiction and power was the Act of 1935, on Page 498, wherein the name of the Criminal Court of Atlanta was changE:d to the Criminal Court of Fulton' County. The first section of the Act reiterated what all the other Acts had done and provided for jurisdiction "over all crimes and

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offenses which by the constitution of the State are not exclusively cognizable in the superior courts thereof".
In the case of Muckle v. Clarke, 191 Ga. 202, Chief Justice Bell, speaking for the Court, stated, in referring to the conditions contained in Muckle's pardon:
"The court below held that although such stipulations in a 'conditional pardo~' were valid, and if accepted by the convict were binding upon him, yet that d1d not furnish an exclusive method of adjudicating a breach of the conditions, and that any court of competent jurisdiction might inquire into the alleged breach thereof and annul the pardon if satisfied of such brc:,ach; notwithstanding the stipulation therein enabling the Pardon Board or Governor to do so."
The Criminal Court of Fulton County was the court having jurisdiction of the case in which the person named in your letter was convicted in Case No. 175644. The offense for which she was charged is a misdemeanor and was originally tried in the Criminal Court of Fulton County.
In answer to Question 1, I am thtrefore of the opinion that the Criminal Court of Fulton County has authority under the laws of Georgia to revoke a "conditional pardon" granted by the Governor in those cases over which it had original jurisdiction.
The order of Judge John S. McClellan, revoking the "conditional pardon", recites that the defendant did on the 16th day of December, 1941, enter a plea of not guilty to the charge of lottery; and afttr trial and conviction, was on said date sentenced by said court to be put to work at labor at the State Farm for the space of six months. The order goes on to recite that she was granted a "conditional pardon" by Honorable Eugene Talmadge, Governor of Georgia, on the 28th day of December, 1942, before:, any part of said sentence had been served. The order further states that it appeared to the court revoking the "conditional pardon" that the conditions upon which the said sentence was conditionally pardoned had been violated, and that the defendant had been again arrested on or about the lOth day of November, 1943, on the same charge of lottery. The order further states that the evidence of the arrc:,sting officers showed that at the time of the arrest of the defendant in 1943, that she had in her possession a large number of original lottery tickets; and that the conditions of the pardon were that the pardon would remain in effect so long as she obeyed all local, Federal, and State laws, and conducted herself properly. Upon these findings of fact, the judge of the Criminal Court of Fulton County found that the terms of the "conditional pardon" had been violated, and he rc:,voked the "conditional pardon" and ordered that the said defendant serve the sentence of six months as originally imposed, and provided that said sentence should follow the twelve months' sentence imposed
in Case No. 181899. In the case:, of Huff v. Aldrich, 192, Ga. 12, Justice Duckworth, speak-
ing for the court, stated: "Where the statutes make no provision for the Governor to determine
whethE:r or not there has been a violation of the conditions of the pardon and Whtre such authority is not expressly reserved in the pardon, the Governor is without authority to inquire into or pass on such issues or to order the re-arrest of the prisoner. In such a case, the prisoner is entitled to a hearing before a
court."

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In answer to Question No. 2, it is my opm10n that the order of the judge revoking the "conditional pardon" complies with Georgia laws, in that the order of revocation recites that since the datE: of the Governor's "conditional pardon", in Case No. 175644, the prisoner has been convicted of a similar offense, being Case No. 181899. The court further found that in addition to this conviction, she had been arrested on November 10, 1943, for a similar offense; and even though the order does not state that she was convicted for this offense, it does state that upon this hearing for revocation of the pardon, the judge found that shE: was guilty of violating a State law since the date of her pardon. The order recites the condition which was breached and fixes her sentence in accordance with the terms of the laws of this State.
In considering the question of whether one who has been at liberty under a "conditional pardon" can be compelled to serve out the balance of thE: unserved sentence, even though the breach of the condition contained in the pardon and the revocation of the "conditional pardon" occurred after the date upon which the sentence as fixed by the court would have expired, it might be well to examine the leading case upon this question. In the case of Harrell v. Mount, 193 Ga. 818, Justice Grice, speaking for the court, stated:
"Where a convict is conditionally pardoned, he may upon breach of the condition be compelled to serve out the term which remained unserved at the time the pardon was granted and accepted, even though the breach occurred after the date upon which his sentence as fixed by the court would have expired."
Justice Grice quoted approvingly the language containE:d in the 39 Am. Jur., par. 71:
"A pardon may, as one of its restrictions and limitations, designate the time for observance of its conditions, but if it does not it is generally held that the time of performance of conditions subsequent is limited only by the lift of the convict."
Quoting from Paragraph 74, of 39 Am. Jur., Justice Grice stated: "A sentence of imprisonment for a criminal act is satisfied only by the actual suffering of the imprisonment imposed, unless limited by death or by some legal authority; if from any cause the time elapses without imprisonment bting endured, the sentence will still be valid, subsisting and unexecuted. It is well settled that where a prisoner is conditionally pardoned, upon brE:ach of t]'!e condition the time he was at liberty under the pardon is not to be considered as time served on the original sentence, and he may be compelled to serve out the term which remained unserved at the time thE: pardon was granted and accepted." In answer to Question No. 3, it is my opinion that the above stated pris.. oner can, under the terms of the judge's order revoking a "conditional pardon", be compelled to sE:rve out the unserved portion of the original se!ltence; even though the breach of the conditions contained in the pardon and the revocation of the "conditional pardon" occurred after the date upon which the sentence as fixed by the court would have expired.

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PENAL INSTITUTIONS-Pardons and Paroles A person to whom a prisoner suffering from tuberculosis has been parolled, should be reimbursed for providing proper medical care.

Hon. F. R. Hammack, Director State Department of Corrections

November 23, 1945

Your letter of October 27th referring to a bill filed by H. N. Baxter for medical care and attention to a paroled prisoner, received. You state in your letter that the prisoner was paroled to Mr. Baxter on January 23, 1945, that shortly after he was received by Mr. Baxter he became ill and was examined by the Kennedy Clinic at Metter, Georgia, and it was discovered that he was suffering from tuberculosis. You further state that the prisoner was received in Alto on February 27, 1945, and that the records of the State Board of Health show that he is still confined in that institution and is considered as a far advanced case of tuberculosis. You request my official opinion on the question of the legality of paying the account claimed due by Mr. Baxter.

The Act of 1937 (Section 77-344, Cumulative Pocket Part of the Annotated Code) gives the Director of Corrections exclusive power and authority

over persons convicted of crime. In 1943 at the Extra Session of the General Assembly the Director of Corrections was authorized, empowered and directed to establish rules and regulations deemed helpful in establishing a wise, in-

telligent and humane prison system, and directed the Director to make reforms

along specific lines, one of which is as follows:

"Inmates infected by disease shall be segregated, hospitalized and treated."

Section 77-363, Cumulative Pocket Part to the Annotated Code.

Another Act was passed in 1943 creating the State Board of Pardons and

Paroles and defining its powers and duties. Under the Act the State Board of Pardons and Paroles has power to grant reprieves, pardons and paroles, to commute penalties, to remove disabilities imposed by law and to remit any part of a sentence, except in certain cases. Section 77-517, Cumulative Pocket

Part of the Code.

Section 77-514, Cumulative Pocket Part of the Code, provides in part as

follows:

"No prisoner shall be released on probation or placed on parole until and unless the Board shall find that there is reasonable probability that, if he is so released, he will live and conduct himself as a respectable and law-abiding

person, and that his release will be compatible with his own welfare and the welfare of society. No person shall be released on pardon or placed on parole

unless and until the Board is satisfied that he will be suitably employed in self-sustaining employment, or that he will not become a public charge."

Section 77-515 of the Cumulative Pocket Part of the Annotated Code pro-

vides in part as follows: "Such parolee shall remain in the legal custody of the Board until the
expiration of the maximum term specified in his sentence or until he is par-

doned by the Board."

Section 77-520 of the Cumulative Pocket Part of the Annotated Code

provides in part as follows:

"No person who has been placed on parole shall be discharged therefrom

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by the Board prior to the expiration of the term for which he was sentenced, or until he shall have been duly pardoned in accordance with the law."
I construe the above provisions of law to mean that a paroled prisoner while serving the sentence outside of the confines of prison continues to serve the same under supervision of the prison authorities.
It is clear that the prisoner was suffering from an advanced case of tuberculosis at the time of his parole on January 23, 1945. This condition could have, and should have been determined by the proper authorities having charge of the prisoner, and he should have been hospitalized and treated. In addition to statutes already cited see Section 77-319, Code of 1933.
It is also clear that the prisoner immediately upon his parole became a public charge, in that he was unable, because of illness from which he suffered at the time of his parole, to work and earn a livelihood, or to pay expenses for medical attention. I am, therefore, of the opinion that Mr. Baxter should be reimbursed for necessary expenses in providing proper medical care and feeding of the prisoner. Section 62 of the Act approved January 29, 1943, known as the General Appropriation Act should be followed and complied with in making the payment. The account should be itemized and submitted to the Auditor for approval. (See Ga. L. 1943, 84-96).
PENAL INSTITUTIONS-Pardons and Paroles The Attorney General may not advise the State Board of Pardons and Paroles whether a conviction was authorized by the evidence submitted at the trial.
December 14, 1945 Hon. Edward B. Everett, Chairman State Board of Pardons and Paroles
Your letter of December lOth received, enclosing the brief of evidence and charge of the court made during the trial of the case of State v. Loughridge.
You request that I review the record and give you an opinion as to whether or not the applicant, Taft Loughridge, could be legally held for the charge of murder under the testimony set forth in the brief of evidence.
The applicant was tried in Whitfield Superior Court at the January Term 1935, and the jury found him guilty of the offense of murder. The courts of this State are set up for the purpose of passing upon all issues of fact and law regarding any controversy that might exist between the State and any one of its citizens or between its citizens. I would be going very far from the line: of duty of my office to review the findings of the courts of the State in saying whether or not they had erred in their findings.
Under Section 77-511 of the Cumulative Pocket Part of the Annotated Code (Ga. L. 1943, pp. 185-187) the State Board of Pardons and Paroles has power to grant reprieves, pardons and paroles, to commute penalties, to remove disabilities imposed by law, and to remit any part of a sentence for offenses against the State, after conviction, except in cases of treason and impeachment, and except in cases where the death sentence has been imposed and the Governor refuses to suspend the execution of such death sentence to enable the Board to consider and pass upon the same.
The Board is charged with the duty of investigating all cases and to

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consider all facts relating to same, together with any changed conditions or ntW evidence, and after so considering, to determine what prisoners serving sentences in the jails and prisons and public work camps of this State may be released or pardoned or paroled, and affixing the time and condition thereof. Even though a person be guilty, as found by the court, it is a matter of discretion vested in the Board whether the Board grants clemency in tht form of a pardon or in any other form provided for by the Act.
The duty to determine what order should be granted in any case is placed squarely upon the State Board of Pardons and Paroles, and I would be going beyond the powers and duties of my office should I attempt to perform this duty for the Board. Because of this fact, I am rtturning to you the brief of evidence in this case without any suggestions as to the merit or demerit of the application.
PENAL INSTITUTIONS-Pardons and Paroles The State Board of Pardons and Paroles may not review the original record of trial for the purpose of determining the guilt or innocence of the defendant, but may consider it on the question of clemency.
January 29, 1946 Hon. Edward B. Everett, Chairman State Board of Pardons and Paroles
Your letter of January 4th, referring to an application filed by a prisoner for a pardon on the ground that he was innocent of crime, rtceived. You request my opinion on the question of whether or not the Board of Pardons and Paroles has power and authority to review the original record and determine whether or not the defendant is legally guilty of the crime charged.
Paragraph 11, Section 1, Article 5 of the Constitution of 1945, which Paragraph makes provision for the State Board of Pardons and Paroles and outlines their powers and duties, provides in part as follows:
"The State Board of Pardons and Paroles shall have power to grant repritves, pardons and paroles, to commute penalties, remove disabilities imposed by law, and may remit any part of a sentence for any offense against the State, after conviction, except in cases of treason or impeachment, and except in cases in which the Governor refuses to suspend a sentence of death."
The same paragraph of the Co]lstitution provides: "The General Assembly may enact laws in aid of, but not inconsistent
with, this amendment." Section 77-511, Cumulative Pocktt Part of the Code of 1933, defines
the power of the Board in practically the same language as that used in the Constitution. This section also provides in part as follows:
"In the cases which the Board has power to consider, such Board shall be charged with the duty of determining what prisoners serving sentences in the jails and prisons and public works camps of this State may be released on pardon or parole, and affixing the time and conditions thereof."
The same section also providts in part: "It shall be the duty of the Board personally to study those prisoners Whose cases the Board has power to consider, who may be confinE:d in the jails, prisons and public works camps of the State, so as to determine their ultimate fitness for such relief as the Board has power to grant:"

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Under the enabling Act, (Ga. L. 1943, pp. 185-187), putting into effect the constitutional provision for the State Board of Pardons and Paroles, the Board is charged with the duty of supervising all persons placed on parole, of making investigations and aiding parolees or probationers in securing employment. Under the law which provides for the fixing of both a minimum and maximum sentence when the prisoner serves the minimum he is permittE:d to serve the remainder outside of the prison camps and under the supervision of the Board. The Board would have the power and right to grant a pardon and remove disabilities imposed by law even though the person may have completed the maximum term of his sentence.
Neither the Constitution nor the enabling Act grants to the Pardon and Parole Board the power, duty or responsibility of reviewing the original evidence for the purpose of determining whethtr or not the defendant was legally guilty of the crime charged. A person charged with crime is presumed to be innocent until his guilt is shown to the satisfaction of the court and jury beyond a reasonable doubt. After the jury has convicted a person charged with crime, that presumption of innocence has been revoked and the pE>rson stands guilty in the eyes of the law. The person charged with the crime is given the right to appeal to the Appellate Courts of the State to reviE>w a conviction rendered in a trial court. Where there is no appeal taken, or if taken where the sentence and judgment of the lowu court is affirmed, the person charged with crime stands finally adjudicated as being guilty of the crime charged. The State Board of Pardons and Paroles does not have the power to review the findings of the court for the sole purpose of determining whether or not thE: defendant was legally guilty.
The State Board of Pardons and Paroles is charged with the duty of investigating cases coming before it, and should consider all facts relating to the case, including the original record, any new facts, changed conditions, the prisoner's conduct while in prison, his attitude towards law, both before imprisonment and while in prison, his ability to earn a livelihood if dischargE:d, and any and all other circumstances that would throw any light on the question to be passed upon by the Board, and under these facts the Board should determine whether or not clemency in any form should be extended and if so the nature of the clemency to be granted.
PENAL INSTITUTIONS-Pardons and Paroles (1) The State Board of Pardons and Paroles has authority to grant reprieves; (2) A reprieve is a temporary suspension for a period named in respite of execution of sentence imposed by the court.
January 29, 1946 Hon. Edward B. Everett, Chairman State Board of Pardons and Paroles
Your letter of recent date, in which you requE>st an opm10n as to whether the State Board of Pardons and Paroles has power to grant reprieves, is acknowledged.
It is necessary for us to consider briefly the history of reprieves in Georgia, in order to determine whether or not it was the intent of the people to place this power in the State Board of Pardons and Paroles. Please permit me

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to point out to you the case of Matter of Flournoy, Attorney General 1 Ga. (Kelly) 606. This case discusses the power of the executive to pardon, reprieve and to remit fines and forfeitures.
In the Constitution of 1877, Article 5, Stction 1, Paragraph 12, the people lodged in the Executive Department the power to grant "reprieves and pardons, to commute penalties, remove disabilities imposed by law and to remit any part of a sentence for offenses against the State, after conviction, except in cases of treason and impeachment."
On August 3, 1943, the people of Georgia ratifitd a constitutional amendment to Article 5, Section 1, Paragraph 12. This amendment dealt with the power of the Executive to grant pardons and reprieves, and conferred upon the State Board of Pardons and Paroles this power. You will note that the language employed in conferring this power upon tht State Board of Pardons and Paroles is the identical language used in conferring the power upon the Governor in the previous constitution. The language used is as follows:
"The State Board of Pardons and Paroles shall have power to grant reprieves, pardons and paroles, to commute penalties, remove disabilities imposed by law, and may remit any part of a sentence for any offense against the State, after conviction, except in cases of treason or impeachment, and except in cases in which the Governor refuses to suspend a sentence of death."
The new Constitution, which was submitttd to the people for ratification on August 7, 1945, in Article 5, Section 1, Paragraph 11, uses the following language:
"The State Board of Pardons and Paroles shall have power to grant reprieves, pardons and paroles, to commute penalties, remove disabilities imposed by law, and may remit any part of a sentence for any offense against the State, after conviction, except in cases of treason or impeachment, and except in cases in which the Govtrnor refuses to suspend a sentence of death."
You will note that this language is a replica of the language which appeared in the amendment to the Constitution, as ratified on August 3, 1943.
It is apparent that the State Board of Pardons and Paroles now exercises the same powers formerly exercised by the Governor with respect to pardons, paroles, reprieves, and rtmissions of fines and forfeitures, except in the one particular dealing with the imposition of a death sentence.
It might be wtll to now consider just what is the legal definition of a reprieve. In 46 C.J.S. 1183, Paragraph 5, a repritve is described as follows:
"A reprieve is the withdrawing of a sentence for an interval of timt whereby the execution is suspended. Reprieves have been classified as being of three kinds: (a) ex mandatio regis (from the mere pleasure of the crown); (b) ex arbitrio judicis (from the arbitrary action of the judge; it is doubtful that a rtprieve under this classification would be legal in Georgia); (c) ex necessitate legis (out of the necessity of the law)."
If the prisoner you mention is granted a reprieve, such reprieve would,
I think, be under the classification " (c)". Some of the definitions of a reprieve that have betn adjudicated by the
appellate courts of other states are as follows: in Texas, in the case of ex parte Black, 123 Tex. Crim. R. 472, a reprieve is defined as a withdrawing of sentence
for an interval of time. In the cast of Williams v. Brents, 171 Ark. 367, a reprieve is defined as
suspending the execution of a sentence for a definite period of time.

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In the case of Gore v. Humphries, 163 Ga. 106, the Supreme Court of this State held that a reprieve by the Executive is a temporary suspension for a period named in respite of execution of sentence imposed by the court.
Blackstone, in his Commentaries, stated that: "A reprieve, from 'reprendre', to take back, is the withdrawing of a sentence for an intE:rval of time, whereby the execution of the sentence is suspended." Bishop, in his Treatise on Criminal Law, states: "A reprieve signifies the suspension for a time of the execution of a sentence which has been pronounced." Webster defines the word reprieve as "the temporary suspension of the execution of a sentence." A suspension of sentence has been distinguished from a reprieve in the case of Carnal v. People (N. Y.), 1 Parker Crim. R. 266, in the following language: "The term reprieve as applied to convictions, has a definite meaning. It postpones the time of execution to a definite day, while a suspension of a sentence is for an indefinite period of time. The distinction between a reprieve and a suspension of sentence is that a reprieve postponE:s the execution of the sentence to a day set, whereas a suspension is for an indefinite time. Therefore, where a reprieve is granted by a Governor, it is the duty of the sheriff, on the expiration of the time, to execute the sentence without further orders by thE: court." It is therefore my opinion that the State Board of Pardons and Paroles has authority, under the Constitution and laws of this State, to grant a reprieve to one who has been convicted of a crime; and that such reprieve would be a reprieve ex necessitate legis. In the reprieve ordE:r, the reason for the reprieve should be recited and a day set for the, termination of the reprieve should be named, and a copy of such order of reprieve should bE: placed in the hands of the sheriff of the county wherein the person reprieved is to be located during the period of such reprieve. It is clear that the Governor of Georgia has always had the right to reprieve a person who had been convicted of a crime, up until our Constitution was amended on August 3, 1943. Since that time, the same powers formerly possessed by the Governor of the State of Georgia are now exercised by the State Board of Pardons and Paroles, with respect to "reprieves and pardons".
PENAL INSTITUTIONS-Pardons and Paroles The State Board of Pardons and Paroles may commute a sentence of imprisonment to present service upon the payment of a fine in a sum fixE:d by the Board.
June 19, 1946 Hon. Edward B. Everett, Chairman State Board of Pardons and Paroles
Your letter of June 13, enclosing a copy of an opinion rendered by Judge T. Grady Head while serving as Attorney General, dated July 22, 1943, received. You state in your letter that Judge Duke Davis of LaGrange, Georgia, had questioned the correctness of the opinion before your Board and requested that I review the same and give you my opinion as to the intE:rpretation of the


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statute relating to the power of the Board to commute a sentence from imprisonment in the penitentiary or chaingang to the payment of a fine.
It is my policy to adhere to official opinions rendered by former Attorn:ys General where the law has not been changed unless it is clear to me that the opinion does not contain a correct statement of the law or fails to comprehend the fullness of the law. Because of this policy I have given serious consideration to the statute granting to the Board of Pardons and Paroles power to grant reprieves, pardons and paroles, commute penalties, remove disabilities impos:d by law, and to remit parts of sentences, and to the construction placed thereon by Judge Head.
Prior to the adoption of the Constitution of 1945 the power of clemency was vested in the Governor of this State by Paragraph 12, Section 1, Article 5 (Section 2-2612, Code of 1933) in the following language:
"He (Governor) shall have power to grant reprieves and pardons, to commute penalties, remove disabilities imposed by law, and to remit any part of a s:ntence for offenses against the State, after conviction, except in cases of treason and impeachment, subject to such regulations as may be provided by law relative to the manner of applying for pardons."
The Constitution of 1945 divests the Governor of the power of clemency. The Governor does have the power to suspend the execution of a death sentence until the State Board of Pardons and Paroles shall have an opportunity of hearing an application for relief within the power given the Board, and in cas:s of treason the Governor may only suspend the execution of the sentence and report the same to the General Assembly, and the General Assembly may pardon, commute the sentence, direct its execution or grant further reprieve. The Constitution of 1945 creates the State Board of Pardons and Paroles and defines its power. Paragraph 11, Section 1, Article 5 of the Constitution of 1945 defines the powers of the State Board of Pardons and Paroles in the following languag::
"The State Board of Pardons and Paroles shall have power to grant reprieves, pardons and paroles, to commute penalties, remove disabilities impqsed by law, and may remit any part of a sentence for any offense against the State, after conviction except in cases of treason or impeachment, and :xcept in cases in which the Governor refuses to suspend a sentence of death."
Acts 1943, pages 185 through 187, Section 11 (Section 77-511 Annotated Pocket Part of Code), defines the powers of the State Board of Pardons and Paroles in language similar to that quoted from the Constitution of 1945.
The act of granting to a person under a sentence a reprieve, pardon, parole, or commuting penalti:s, removing disabilities imposed by law, and remiting any part of a sentence, amounts to an act of grace on the part of the authority to the prisoner. The Board may grant a full pardon, or it may commute a sentence to present service. Such would be granting of unconditional clemency. The greater would include the lesser and, therefore, under the terms of the Constitution the Board of Pardons and Paroles can grant pardons and
commute penalties conditioned. See Muckle v. Clarke, superintendent, 191 Ga. 202-204, where Justice
Bell in th: opinion states as follows: "A pardon, however, is a mere act of grace, to which the pardoning power
may attach any condition precedent or subsequent which is not illegal, im-

448
moral, or impossible of performance; and when a convict accepts such conditional pardon he is bound by all of its valid provisions."
The pardon power, and the power to commute sentences, are both included in the same constitutional provision and in my opinion the rules announced by JustiCf:' Bell applies with equal force to the commutation of a sentence as it does to a pardon. The Supreme Court in Huff alias O'Shields v. Aldredge, sheriff, 192 Ga. 12, construes and defines the power of the Governor and follows the above quoted statement of Justice Bell. The Supreme Court in Pippin v. John,son, 192 Ga. 450, reaffirmed and followed the statement made by Justice Bell in Muckle, supra, and Huff, supra.
Our governmental scheme for protecting society from crimes and criminals f:ntrusts constitutionally defined functions to three branches of the government, the legislative, judicial and executive branch. Under the present Constitution the executive power of granting clemency is in the State Board of Pardons and Paroles. Under the Constitution the State Board of Pardons and Paroles is given the right to commute penalties imposed by sentences of courts. Justice Jackson in Ogletree v. Dozier, 59 Ga. 800, defines "commute" as follows:
"To commute means to change * * *'. In its legal sense, to commute
would mean to change from a higher to a lower punishment-to change a penalty from the hard work of a chain-gang to work' on a farm, for instance; and we hold that this power belongs, if it b: exercised at all, to the governor."
At the time of this decision the Constitution vested the power in the Governor. That power is now vested in the State Board of Pardons and Paroles.
Volume 8, Words and Phrases, pages 163-168, recited many court decisions for many states defining the word "commutation" as legally applied to sente,nces imposed against parties for having violated some criminal statute. The greater weight of the authorities is to the effect that commutation is a change of punishment to which a person has been condemned to one less severe, or a change of one punishment known to the law for another lesser punishment known to the law. Among the decisions so holding will be found: Fehl v. Martic, ~4 Pac. 2d 631, 155 Oreg. 455; People v. Jenkins, 152 N. E. 549, 322 Ill., 33; McDonald v. The State, 64 S. E. 1108, 6 Ga. App. 339; People v. Lockman, 244 N. Y. S. 431; Stone v. Burch, 154 Sou. 128, 114 Fla. 460.
Many other like decisions could be referred to. In Re. Appli'::ation of White, 2 N. Y. S. 2nd 582, the court states:
"A commutation of sentence is an act of grace and may be made upon conditions precedent or subsequent as other gifts."
After giving due study to the constitutional provision defining the power of the State Board of Pardons and Paroles, and after comparing the same with the power formerly vested by the Constitution in the Governor of the State, and giving due consideration to the numerous decisions of the court which have herein been referred to, I am constraine,d to believe that Judge Head failed to fully comprehend the true import of the power to commute sentences. I think that the power to commute sentences carries with it the power to commute conditionally just as the power to pardon carries with it the power to pardon conditionally.
I am, therefore, of the opinion that the State Board of Pardons and Paroles does have the power to commute a se,ntence of imprisonment to present service upon the condition that the prisoner pay a fine in the sum fixed within

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the law by the State Board of Pardons and Paroles, or upon such other conditions which are not illegal, immoral or impossible of performance.
PENAL INSTITUTIONS-Pardons and Paroles A defendant sentenced to a minimum and maximum term should be allowed to serve the remainder of his sentence without the confines of prison aftE:r completing the minimum term less good conduct allowance.*
November 29, 1946 Hon. Edward B. Everett, Chairman State Board of Pardons and Paroles
You referred to me for handling the petition of a prisoner seeking to be released from custody of Hon. John S. Jenkins, Warden of Muscogee county. Judge Bowden issued the writ of habeas corpus directing the warden to produce the body before the court so that the court could look into the legality of the restraint of petitioner. The petition was brought against Jenkins, State Board of Pardons and ParolE:s, and the State Board of Corrections.
For the purpose of preparing an answer to the petition in compliance with the order to show cause of detention of petitioner, I called on your office and the Department of Corrections for information relative to the ground of restraint of petitioner.
According to the information furnished me, I find that petitioner was convicted for the offense of burglary in Fulton SupE:rior Court in 1940 and was sentenced to serve in the penitentiary for a term of three (3) years minimum and five (5) yE:ars maximum. The records indicate that a motion for new trial was filed and finally disposed of and that J'etitioner entered upon the service of the sentence on May 22, 1944. I also find that the records in the Department of Corrections show that petitioner has served with a good conduct record, and that on July 11, 1946, the Department of Corrections certified to the Pardons and Paroles Board that petitioner had served with a clear conduct record and with the allowancE: for statutory and extra good time, petitioner's minimum sentence expired on August 21, 1946.
I noted that paragraph 6 of the petition filed referred to an op1mon rendered by my predecessor, Judge T. Grady Head. Judge Head stated in the opinion:
"It is my opinion that the General Assembly, in making provision that the jury should fix a minimum and maximum term within the time prE:scribed by law, intended that each and every prisoner abiding by the rules of the State Prison Authority should expect to be and would be released upon completion of the minimum term set by the verdict of the jury".
Judge Head in the opinion was dealing with the question of whether or not it was the duty of the Pardons and Paroles Board to fix rules by which a convicted person, after serving the minimum sentence, may be allowed to complete his tE:rm without the confines of the penitentiary upon complying
*uAccording)y, it is our opinion that after passage and appt"oval of the last-mentioned act, the pertinent statutes, construed together, made it mandatory upon the commission to prescribe rules by which a convict may be granted a parole after serving his minimum sentence, but did not prevent the grant of a parole, under appropriate rules and as a matter of discretion, before completion of such minimum term or any part thereof." Matthews v. Everett, 201 Ga. 730, decided Jan. 7, 1947.

450
with said rules. Judge Head held that it was the duty of the Pardons and Paroles Board to fix such rules and regulations. The opinion cites a number of decisions rendered by the State Supreme Court and the Court of Appeals of the State where it is held that the defendant has a substantive right in having the indeterminate sentence law given in charge to the jury. In the opinion, the case of Hollis v. The State, 48 Ga. App. 672, is cited. In that case, the jury found the defendant guilty of robbery and recommended a misdemeanor punishment. The court disregarded the misdemeanor recommendation and sentenced the prisoner to serve not less than eight years and not more than twelve years. The jury did not fix the minimum and maximum term. The court held that the verdict was not void and that had the Judge given the minimum term of punishment prescribed by the statute for the offense that the error committed by the Judge would have been harmless. The case was affirmed with direction from the Court that the prisoner be carried back before the trial court to be sentenced according to the verdict of the jury. After consideration of the opinion rendered by Judge Head, I am concurring in the opinion.
Therefore, under the opinion rendered by Judge Head, and under the facts and information furnished this officE: by you and by the Department of Corrections, the petitioner has served the minimum term with good conduct and is entitled to serve the remainder of his sentence without the confines of prison under rules and regulations established or to be established by your Board.
PENAL INSTITUTION,S-Pardons and Paroles (1) The Chairman is the presiding parliamentary and administrative officer of the State Pardon and Parole Board. (2) The State Pardon and Parole Board may call upon the Chairman to perform administrative acts for it not delegated by the General Assembly to the Board.
February 24, 1947 Hon. Edward B. Everett, Chairman State Board of Pardons and Paroles
Your letter of February 21, enclosing a copy of your letter dated July 31 with the request that I answer questions propounded in your July letter, received. You refer to the language "The GovE:rnor shall biennially appoint one of the Members of the Board as Chairman, who shall serve until his successor is appointed and qualified" and request my opinion as to what are the duties, powers, authorities and responsibilities of the office of Chairman of the State Board of Pardons and Paroles.
The Act, (Ga. L. 1943, pp, 185-194), creating the Board does not define rights, powe:rs and duties of the Chairman. It will be gathered from the Act that the statements relating to the powers and duties referred, in most instances, to the Board. As an illustration of this statement the Board adopts an official seal. A majority of the Board constitutes a quorum for the transaction of all business. The Board may appoint such clerical, stenographic, supervisory and expert assistance, and establish qualifications for employees as they deem necessary, and in its discretion may discharge such employeE:s. The Board has power to grant reprieves, pardons and paroles, to commute

451
penalties and to remove disabilities. There are other state:ments which refer to the duties of the Board.
Thus from the Act it is to be observed that the management and control of the Department is vested in the Pardon and Parole Board and not the individual members thereof, or in any one individual officer. The general rule in regard to such a Board is state:d in Corpus Juris as follows:
"In the absence of a statutory provision to the contrary, where official authority is conferred upon the board or commission composed of three or more persons, such authority may be exercised by a majority of the members of the board, but it may not be exercised by a single member of such a board, or by a minority."
46 C. J. 1034, Section 99. In addition to those rights, powers and duties which are specifically imposed upon the Chairman of the Pardon and Parole Board by statute, the title of Chairman necessarily carries with it the burden of duties not common to mere membership of the Board. In its opinion in the case of Patten, et al. v. Miller and Griffin, et al. v. Miller, 190 Ga. 152, the Supreme Court said: "As already pointed out the statutes provide for the position of chairman. The title alone ne:cessarily carries with it the burden of duties not commori to mere membership on the board. The chairman of a board is the presiding parliamentary and administrative officer. His duties as such are manifold and well recognized though perhaps not subject to any exact definition or enumeration."
In the case of Patten v. Miller, 190 Ga. 105, it was said: "The very title, chairman of the board, carries with it the idea that the occupant of such office has certain duties, such as presiding at board meetings, etc., which are not share:d by the other members." The title of chairman is a name given to the presiding officer of an assembly, public meeting, convention, deliberations or legislative body, board of directors, etc. 14 C. J. S. 350.
Thus while the Department is managed and controlled by the Pardon and Parole Board, the Chairman of the Board is the proper parliamentary officer to pre:side at the meetings of the Board, for the purpose of directing or regulating proceedings and seeing that the meetings or hearings are conducted in an orderly manner. The Chairman of the Board, however by virtue of such office or of his title does not acquire the authority to perform the powers and duties vested by the General Assembly in the Pardon and Parole Board.
In the case of Beall v. The State, 9 Ga. 367, it was held that where a public trust or duty is required to be done by a definite number of persons, a majority of that definite number may act.
Section 102-102 of the Georgia Code of 1933 provides in part: "The following rules shall govern the construction of all statutory enact-
ments: * ,.. * (5) A joint authority given to any number of persons, or offi-
cers, may be executed by a majority of them, unless it is otherwise declared."
As pointed out in the Miller case by the Supreme Court in its decision, the designation of one of the members of the Board carries with it, by necessary implication, the idea that the member has the burden of certain duties not common to a mere membership on the board. These are what may be Properly called parliamentary and administrative functions. This, however, does

452
not mean that the General Assembly has, in creating a chairmanship of the board, necessarily given or delegated to the member holding that position the sole right and authority to .perform any particular administrative duties. The designation is not per se a grant of power but is descriptive of the member who may be specified by the Board to attend to matters not calling for the action of the Board. With the possible exception of presiding at Board meetings, the administrative functions to be performed by the Chairman are to my mind varied, depending upon the outline of duties marked out by the Board for the execution by thE: Chairman in the performance of the functions of carrying on the work of the Board. The services falling within this category to be performed by the Chairman for the Board are subJect to the superior authority and will of the Board itself. In this view, in the absence of any contrary action by the Board, the Chairman would be under the duty and would have the right, as between the Chairman and other members of the Board, of performing many administrative acts which can not be exhaustively defined and enumerated. The Board may properly call upon the Chairman to perform any or all acts for it, not delegated by the General Assembly to the Board.
It is my belief that the General Assembly in creating a chairmanship of the Board of Pardon and Paroles did so for the convenience of the Board, in that the Board is privilegE:d to expect and to call upon such member for the performance of duties or services not calling for the action of the Board or delegated by the General Assembly to others. As a general rule, the Board has the right to determine such duties and to provide how, in what manner the particular administrative acts shall be performE:d.
It would be impossible for me to outline or to point out any more specifically the general duties of the Chairman of the Pardon and Parole Board.
PENAL INSTITUTIONS-Pardons and Paroles A prisoner paroled after serving 8 months of a 1 to 3 year sentence, and a month later convicted on a new charge, sentE:nced to 6 months, and his parole revoked, who was released at the end of the new sentence, may not be re-arrested almost 7 years later to ~erve the balance of his original sentence.
June 20, 1947 Hon. C. A. Williams, Director State Board of Corrections
This letter is in response to your recent communication in which you rE:quest my opinion regarding the following situation:
It appears the named defendant was sentenced August 3, 1939 to serve one to three years, was paroled on April 5, 1940, and on May 5, 1940 was convicted on a new charge and sentenced to serve six months. It further appears that the State Prison and Parole Commission at that time revoked the parole; however, the file in this case was not combined with the new sentence and he was released after the expiration of the six months' sentence. The question propounded is whether you would be authorized to arrest this individual and return him to the penitentiary to serve the remainder of his sentence.
Under the old law, as set out in Section 77-505 of the Code of 1933, it was stated:

453
"When any paroled prisoner shall be re-arrested on order of said Commission for violation of thE: conditions of his parole, or otherwise, he may be required by said Commission to serve the remainder of his original sentence; time paroled may or may not be considered or calculated as a part of the original sentence in the discretion of the Commission."
However, Code Section 77-519 provides as follows: "Hearing after arrest; finding of Board.-As soon as practicable after the arrest of a person charged with a violation of the terms and conditions of his parole, such parolee shall appear before the Board in person and a hearing shall be had at which the State of Georgia and parolee may introduce such evidence as they may deem necessary and pertinent to the charge of parole violation. Within a reasonable time thereafter the Board shall make findings upon such charge of parole violation and shall enter an order thereon rescinding said parole and returning such person to serve the sentence therE:tofore imposed upon him, with benefit of computing the time so served on parole as a part of such person's sentence, or reinstating such parole, or shall enter such other order as it may deem proper." In all justice and fairness, where it appears that the individual had his parolE:' revoked, was re-arrested and then released almost seven years ago, it seems that the time for re-arresting him to serve the balance of his sentence has now expired. To hold otherwise would mean that your department could revoke a parole, and knowing the whereabouts of the parolee, could, nevertheless, hold the threat of serving the remainder of a revoked parole sE:ntence over his head for the rest of his life. It is my firm opinion that your department is without authority to re-arrest the defendant under thE:' circumstances as set out in your communication.

PENSIONS-Department of Veterans Service

(1) The rules and regulations of the State Board of Veterans Service

control over the recommendations of the GE:orgia State Veterans Educa-

tion Council in the administration of the Education Division of the State

Department of Veterans Service.* (2) The State Board of Veterans Service may expand the Education

Division to include on-the-job training without the recommendations of

the Georgia State Veterans Education Council. (3) Employees of thE: Education Division of the State Department of

Veterans Service are under the jurisdiction of the State Board of Vet-

erans Service and the Director. (4) Meetings of the State Board of Veterans Service may be held at any

office of the State DepartmE:nt of Veterans Service in the State. Board

members are entitled to actual expenses incurred in attendance upon such

meetings. (5) Regulations should be adopted by the State Board of Veterans Serv-

ice and enforced by the Director.

February 21, 1946

Hon. C. Arthur Cheatham, Director

Department of Veterans Service In my absence on February 13 Assistant Attorney General Daniel Duke

*The Act of 1947, pp. 1143-1151 vested authority over veterans educational affairs in the Veterans Education Council created by that Act. See opinion dated July 3, 1947, page 462.

454
renden;d to you an unofficial opm10n in response to your letter of February 11 with respect to the powers, duties and jurisdiction of the Georgia State Veterans Service Board.
Since you are entitled to an official opinion from me covering the subject matter, I am hereby adopting the conclusions reached by Mr. Duke with my own official conclusions as follows:
There are five questions pr(:sented for determination in your letter. They will be answered in the order of their presentation.
QUESTION 1. You ask that Section 11 of Act 344 appearing on page 324 in the Georgia Laws of 1945 be clarified. You ask whether the Education Division of the Department of Veterans Servi~e shall be administered in conformity with the recommendations of the Georgia State Veterans Education Council, and if in th(: event of a conflict between the recommendations of the Georgia State Veterans Education Council and the rules and regulations of the Veterans Service Board, you as Director should accept the rules and regulations of the Veterans Service Board. The first question also contains what I consider to be a third question, and that is, does the Veterans Service Board have the authority to reject the recommendations of the Veterans Education Council?
Answ(:ring the first question, permit me to call your attention to the language of the statute as follows:
"The Director of Veterans Service shall maintain a division of the Department of Veterans Service dealing exclusively with the education of war vetHans, which said division shall be administered in conformity with the recommendations of the Georgia State Veterans Education Council."
You will note that the Act makes it mandatory that you as Director maintain a department to deal exclusively with the education of war veterans. Suppose there were no Georgia State Veterans Education Council? It would still be your duty to maintain such a department, and under the spirit of this Act it would be the duty of. the VetHans Service Board to adopt rules and regulations to guide you in your administration of such department. Nowhere in the Act are the duties of the Veterans Education Council defined, nor are the manner and method of their selection defined. In fact, I have been unable to find any law which deals with the Georgia State Veterans Education Council. In the entire Act they are mentioned only once, and that is in Section 11. Therefore, this body is not officially created by law, nor are the members of this council given by law any powers as officials of this State. It seems to me that the spirit of the Act contemplat(:d that there would be a Georgia State Veterans Education Council which would operate in an advisory capacity only, and that in the event of a conflict between its recommendations and the rules and regulations, of the State Board of Veterans Service, the rules and regulations of the Board would take pr(:cedence over the council's recommendations. Therefore, it is my opinion that the State Board of Veterans Service has authority to accept or reject the recommendations of the Veteran~ Education Council. I believe however, that all possible efforts should be made by the Board and by the Director to follow the recommendations of this office of the Georgia State Veterans Education Council with respect to the type and quality of the educational program being offered to veterans.
QUESTION 2. The question here presented is wheth(:r it is within the power of the State Board of Veterans service to expand the Education Di-

455
vision set up under Section 11 of the Act to include on the job training or any other service that might be required, and whether or not if it were determined by the Board that said DepartmE:nt should be expanded, would it be necessary for them to have the recommendations of the Education Council before making the expansion.
In answer to this question, I call your attention to the fact that the Act itself makes it mandatory that the Director and the Board maintain such a department. I believe that the Act itself is broad enough for the Director and the Board, in the event that therE: is a need for expansion of this division, to make such expansion by initiating such expansion of their own volition. Again, may I state that in expanding such service I believe the spirit of the Act contemplates that such expansion would be made under the recommendations of the Veterans Education Council. ThesE: recommendations, of course, would be as to the type and quality of the educational services being rendered, rather than as to the means and mechanics of operating the Division under the expansion.
QUESTION 3. This question seems to present the problE:m as to whether the employees of the Education Division are under the State Board of Veterans Service, or are under the State Veterans Education Council. In answer to this Question, may I call your attention to Section 4 of the Act which appears at page 321 of thE: Acts of 1945, quoted as follows:
"The State Board of Veterans Service shall recommend to the Director matters of policy, procedure and work projects. It shall be ~e duty of the Director to effectuate and carry out the laws of the State pertaining to veterans, and likewise to perform the duties required of him by law and by regula~ion of the Board." (Emphasis supplied).
l\Iay I likewise call your attention to Section 8 of the Act appearing as page 323 of Georgia Laws of 1945, quoted as follows:
"The Director of the State Department of Veterans Service is authorized and directed to employ competent personnel to assist in the administration of the Department of Veterans Service. . . ."
You will note that under Section 11, the Act makes it mandatory that you maintain a department within the Department of Veterans Service to deal exclusively with the education of war veterans. Section 4 and Section 8 supra, make it mandatory that you employ competent personnel in conformance with the law and with the regulations of the State Board of Veterans Service. In the event that the State Board of Veterans Service should by regulation require you to do an act that is contrary to the law, of course you as Director would be required to act in conformance with the law. It is therefore my opinion that the employees of the State Department of Veterans Service are under the jurisdiction of the State Board of Veterans Service and the Director, and that the Georgia State Veterans Education Council has no authority over such
~mployees.
QUESTION 4. This question deals with the authority of the State Board of Veterans Service or the Director to call meetings of the Board, and whether the members of the Board would be entitled to actual traveling expenses and actual expenses incurred by them in attendance upon such call meetings.
You will note that Section 2 which appears at page 321 of the Acts of 1945, states "that the State Board of Veterans Service shall m. eet onc,e eyach month in the offices of the State Department of Veterans Service. . . . ou

456
will note from the Act that it does not state that said meetings shall be at the office of the State Board of Veterans Service, and so it is apparent that the legislators in enacting this measure recognized the fact that the State Board of Veterans Strvice would have several offices located throughout the State Qf Georgia. It would be a strange construction of the law to hold that it would be necessary for the members of the Board to travel to Atlanta, Georgia to attend meetings when it might be more convenient for them to travel to another city in Georgia in which one of the offices of the State Dtpartment of Veterans Service is located.
Under the Act, Section 2 also provides that a ''call meeting of the Board may be had by the Chairman thereof or by the Director of Veterans Service." It is my opinion that either the Chairman of the Board or the Director of Veterans Service may have a call meeting of the Board, and that such meeting can be had in either one of the offices located in the State of Georgia and that the members in attendance upon such meeting would be entitled to actual traveling expenses and actual tXpenses incurred by them.
QUESTION 5. This question deals with the clarification of Section 4 appearing at page 321 of the Acts of 1945, and has already been answered in the other four questions. More specifically answering Question No. 5, it is my opinion that the rules and regulations to effectuate and carry out the broad purpose of the Act which creates the State Department of Veterans Service, should be formulated by the State Board of Veterans Service and enforced by the Director.
Generally answtring all of the questions propounded in your letter with more particular reference to Questions 1, 2 and 3, it is my opinion that the Georgia State Veterans Education Council is only an advisory board to advise with the Department of Veterans Service and the Director in their administration of the educational program to be inaugurated in cooperation with the State Department of Education, the United States Veterans Administration and others. The Act seems to intend that thty recommend educational standards to be adopted, and that they are to advise with the State Board of Veterans Service and the Director as to the type and quality of the educational program being offered to veterans. The administrative duties, the initiation and effectuation of the rules and rt'gulations governing the employees and the administration Qf the Act itself, are by law under the State Board Qf Veterans Service and the Director, and I do not believe that the Act contemplated that the Georgia State Veterans Education Council would be responsible for any part of the actual administration of the Departmtnt of Veterans Service.

457

PENSIONS-Department of Veterans Service
(1) The power of an administrative agency to compel the appearance of witnesses before it may not be implied. (2) The State Board of Veterans Service is not grarited the right to invoke the aid of thE> judiciary in compelling witnesses to appear before it. (3) The State Board of Veterans Service may determine, in its discretion, whether a complaint filed against the State Director of Veterans Service would constitute cause for removal if sustained by proof upon a hearing.

Hon. Quimby Melton, Chairman State Veterans Service Board

March 29, 1946

I beg to acknowledge your letter of March 19, in which you request my opinion involving the rights, powHs, and duties of the State Veterans Service Board under SE:ction 4, paragraph 2 of the Veterans Service Act.

For your convenience, I will discuss these questions separately, confining

myself first to the question of:

Does the Board (which all parties must concede acts as a quasi-judicial body when holding a hearing under the authority of Section 4, paragraph 2 of

the Act) in the absence of specific legislative authority have the power to

compel the attendance of witnesses before it when it is dE:termining the issuable facts that affect the rights of persons or of the State?
This question is very pertinent to the matters for determination becausE:

it brings into focus the principle of the tripartite division of powers which are implied by the Constitution of the United States and specifically provided for

in the Constitution of Georgia. The only authority the Legislature has specifically conferred upon the

State Board of VetE:rans Service with reference to this matter is found in the

Acts of 1945 at page 322, Section 4, paragraph 2, which is as follows: "The State Board of Veterans Service shall select a Director of Veterans
Service who shall serve for a term of four years who shall be Chief Executive and administrative officer of the Department and the Board. The said Director shall serve during good behavior, providE:d however, the Board can at any time for good and sufficient cause properly shown dispense with the services of the Director, after a hearing before said Board of Veterans Service, at which hearing, said Director shall be heard in person, by counsel, or both." (Em-

phasis supplied).

You will notice that this grant of authority does not include the words "evidence", "witnesses", or "subpoena". It does not provide that the Board shall hE:ar sworn testimony nor does it even imply that the Board is clothed with authority to issue subpoenas to compel the appearance of witnesses be-

fore it.

There is no statute of general force in this State which provides that the quasi-judicial tribunals existing under the Georgia law have authority to invoke the aid of a court in compelling contumacious witnesses to appear and

give testimony before them.

No case has been found where the existence of this power is impliedly

asserted.

The times the courts of this land have asserted the contrary view are too numerous to enumerate. I will point out, howevH, some of the landmark

458

decisions on this subject and will also set forth the number of times our own

Legislature has recognized this principle.

The first qual3i-judicial agency created by the Georgia Legislature was the Georgia Public Service Commission. It was specifically empowered to hr:ar testimony, swear witnesses, issue subpoenas, etc. The Legislature provided at

Code Section 93-505 that in the case of contumacy the Commission shall first apply to the Judge of the Superior Court Of the county in which the witness is

found for an order directing the contumacious witness to appear and that if the witness fails to comply with the order issued by the Court, he may be adjudgr:d guilty of contempt.

It will be hereafter shown by both Federal and State decisions that the manner above provided is the only way the Legislature can confer such

authority and avoid violating the doctrinr; of "Separation of Powers" as pro-

vided in the United States and Georgia Constitutions. The Legislature made the same provisions in Code Section 56-1312 as

respects the Insurance Commissioner's quasi-judicial powers and provided that

he invoke the aid of the Superior Court in compelling witnesses to appear

before him.



The Legislature in granting specific authority to thr; Board of Workmen's

Compensation to administer oaths, hear testimony, subpoena witnesses, and compel their presence provided in Code Section 114-703 that said Board shall invoke the aid of the Superior Court in compelling a contumacious witness to appear before it.
The Legislature in creating the Bureau of Unemployment Compensation, in Code Section 54-638, provided for thr: Board of Review to invoke the aid of the Superior Court in compelling a defiant witness to appear before it to

give testimony on a matter pending before it where facts were to be determined affecting the rights of persons.
Thus the Legislature has long since recognized that in order for a quasijudicial agency crr:ated by the laws of this State to have the right of com-

pulsory process in compelling witnesses to appear before it, such authority must be specifically granted in the Act itself and that the grant of such authority must be within the doctrine of "Separation of Powers".

In the case of Capalis v. Helvering, 4 F. Supp. 181, it was held: "\Vhere a statute does not specifically confer power on an administrative officer or body to issue subpoenas and compel the attendancE: of witnesses, the officer or body has no such power". In 70 C. J. 75, it is stated: "Under statutes so providing, legislative or administrative bodies have the right to compel the attendance of witnesses before them". (Emphasis supplied).

It is clear from these cases that unless the statute provides for the compulsory attendance of witnesses, no such power is conveyed by implication.

Prior to 1887, statutes of State Legislatures and of the Congress had been struck down as unconstitutional, where administrative agencies and quasijudicial tribunals had been given authority to subpoena witnesses before them, as an invasion of the powers assigned to the judiciary. Even where these agr;ncies had been required by statute to invoke the judicial power in compelling the appearance of witnesses before them, the courts had nullified the acts as a usurpation of the judicial power by the Legislature.
In 1887, however, the Interstate Commerce Act came beforr; the United

459
States Supreme Court for review on constitutional grounds. One of the provisions of the Act being contested was the authority of the Commission to compel the appearance of witnesses before it. The Act provided that the Interstate Commerce Commission had authority to issue a subpoena and that if the person subpoenaed failed to respond that the Commission could invoke the aid of the District Court in the district where such contumacious witness could be found and provided further that the Court should issue an order directing the witness to appear and that if the witness then failed to comply with the court's order, such witness could be adjudged guilty of contempt by the court.
The Supreme Court in the case or Interstate Commerce Commission v. Brimson, 154 U. S. 447, for the first time held that the Legislature in granting this power did not usurp the powers of the .Judiciary and established the doctrine that the Legislative branch of the Government could clothe an administrative agency or quasi-judicial tribunal with authority to compel the appearance of witnesses provided such authority is specifically given and provided further that power to compel the appearance of the witness must be asserted by invoking the aid of the judicial arm of the Government.
People v. Kipley, 49 N.W. 237, Jones v. Securities and Exchange Commission, 298 U. S. 968.
The Brimson decision, supra, has been followed by the United States Supreme Court in determining the powers of all of the modern administrative tribunals as their specified powers touch upon the question of compelling the appearance of witnesses before them.
In 42 Am. Jur. 326, Par. 33, it is stated: "Although administrative officers have not inherent power to require the attendance of witnesses before them and put them under oath and require them to testify once they are before them, they are frequently given this power by statute."
In 39 Harvard Law Review, pages 694 through 724, the Brimson decision and other decisions are discussed and this principle is set forth:
"An administrative agency may not in itself compel the attendancE'~ of a witness, but that the compulsion must be exerted through the judicial process."
In the case of Dickerson v. Mangham, 194 Ga. 470, Justice Duckworth, speaking for the Court, stated:
''There is no provision in the general law for the payment of witnesses residing out of the county where a civil suit is tried or an inquiry and investigation is made by this bureau ... Thus it is clear that the law does not contemplate that a person who is not a party to the case and who has no interest therein shall be compelled by any process to 10xpend his time and money in travel for the purpose of giving testimony or evidence in behalf of others. Such would constitute taking his property without due process."
Commissioner of Floyd County v. Black, 65 Ga. 384.
Code Section 38-1504 provides for the court to proceed by attachment to compel the attendance of a witness who fails to obey a subpoena. This power, of course, is confined to th Judiciary.
Code Section 38-1603 deals with the competency of witnesses and does not deal with a court's power to compel the attendance of a witness failing to obey a subpoena issued out of the court.
Prior to the Evidence Act of 1866, the general rule was that any person

460
who had a direct legal interest in the suit pending before a Court was not even competent to testify.
Your request also includes the following two questions: Is the State Board of Veterans Service required by the Act of 1945 to hold a hE:aring on any or all complaints which may be made against the Director by persons other than a majority of the members of the Board?
Was it the intention of the Legislature that the Board, in exercising its authority under S~ction 4, paragraph 2 of the Act, should determine as a condition precedent to a hearing that complaints are worthy of consideration and that the Board after determining this should itself give notice to the Director of the charges he would be called upon to answer?
In dealing with these questions, we must examine certain phrases used by the Legislature in this particular provision of the Act.
Nowhere in the Act are the phrases quoted as follows dE:fined. (a) "Good behavior." (b) "Good and sufficient cause." (c) "Properly shown." (d) "Hearing." Since the Act itself does not define these words, the legal construction the courts have placed upon them must be resorted to. We must also construe in its entirety the whole of Section 4, paragraph 2 of the Act in ordu to gather the overall intent of the Legislature when it made this delegation of power to the Board. The words "good behavior" in, the case of Commonwealth v. Williams, 79 Ky. 42, were defined to mean: "As grounds for removal from office, breach of good behavior is misconduct in office and conduct however immoral, which does not relate to the official action of the officer, is not such a breach." In 2 West Law Journal 121, it is stated: "A breach of good behavior can mean unreasonable neglect or the wanton refusal to obey an order of court." The words "properly shown" as used in thE: Act must mean that the persons making a complaint before the Board against the Director must have sufficien: information and facts to satisfy reasonable men that the charges are worthy of investigation or they must be able to point to some documents within the department itself, that on their face or taken togE:ther with other records, would show "good and sufficient cause" to dispense with the services of the Director.
The phrase "good cause" in the case of Nephew v. Willis, 298 Mich. 187; 135 A.L.R. 340, was defined to mean "Under a statute prohibiting discharge of employees in classified service except for 'specified reasons or otherwise good and sufficient cause' the 'good causE:' includes any ground which is put forward by the authorities in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the duties with which such employees are charged."
Cherry v. Bivins, 185 Miss. 329, Davis v. School Commission, 307 Mass. 354. The phrase "sufficient causE:" was defined to be synonymous with the term "good cause" in the case of Kyndall v. Briley, 86 N.E. 56. In the case of Kensler, California, 81 Pac. 2nd 813 it was held "good and sufficient cause to authorize the removal from office of a city clerk means legal cause, and in any cause which the council think sufficient." Kent County Board, 140 A. 701, Adamson v. Leathers, 60 Ga. App. 382. A "hearing" has been defined to mean:

461
In construing a T:nnessee statute which provided for the revocation of a license by a commission "after a hearing for good cause shown," the Tennessee Supreme Court ruled in the case Insurance Company v. Rodgers, 163 Tenn. 447, that "The hearing thus provided is a legal hearing and notice to opposing parties is necessarily implied."
In the case of Wisconsin Telephone Company v. Public Service Commission, 232 Wis. 274, the Court ruled that the three essentials of a hearing are:
"a. A hearing means the right to seasonably know the charges or claims preferred;
"b. The right to meet such charges or claims by competent evidence;
"c. The right to be heard by competent counsel upon the probative force of the evidence adduced by both sides and upon the law applicable thereto."
43 Am. Jur. 54, 56, Par. 216, 217:
"The power to remove a public officer considered by itself alone, has been characterized as :Xecutive in nature. When as a prerequisite of the exercise of that power, there must be a formulation of charges by the authorities removing such officer, notice thereof, a hearing and decision, then, according to the authorities, the hearing and decision partake also of the nature of a judicial investigation." (Emphasis Supplied).
115 A.L.R. 30. "Nevertheless, the Board is not a judici~l body. It is a mere administrativ: body to which is delegated the power of a motion."
State v. Bright, 224 1\fo. 514.
While a Board conducting a removal proceeding is not bound by the technical rules of a regular court, and within certain limitations has been said to be a law unto itself, it is nevertheless bound to a strict observance of all statutory requirements, and to an observance of the fundamentals of a fair and impartial trial. Any constitutional limitations on the power of the removal should be strictly followed. The most important feature of the customary procedure for the removal of public officers consists of notice and an opportunity to be heard.
In giving an officer notice of the procedure, a usual requirement is that he must be furnished with a written statement of the charges against him by the authorities to whom he is responsible and who possess the power of removing him. In the absence of such expressed requirements, written charges are unnecessary, at least where in the circumstances the offi<;H is given a fair hearing, however informal. Charges against an officer in proceedings for his removal should specify the cause with such reasonable detail and precision as to inform him of what dereliction of duty is urged against him.
Denver v. Darrow, 13 Colo. 460; Meft v. Waterberry, 72 Conn. 43; State v. Scott, 35 Wyo. 108.
In the case of Coleman v. Glenn, 103 Ga. 458, Justice Lumpkin, speaking for the Court, stated: "Where an officer holds his office for a certain number of years 'if he shall so long behave himself well' he cannot be removed, even for misbehavior, without notice and a hearing. So where one is appointed for a fixed term and removable only for cause, he can be removed only upon charg:s, notice and an opportunity to be heard. It may therefore be considered as settled beyond all doubt or preadventure, that a public officer who has under the law a fixed term of office, and who is removable only for a definite and specifi:d cause, cannot be removed without notice and a hearing on the charges preferred against him, with an opportunity to make defense.

462
1 Dillon's Municipal Corporation, Section 250; Mahem's Public Officers, Section 454; Throop on Public Officers, Section 364.
In passing the Act referred to herein, the Legislature was apparently cognizant of this rule. It must be, therefore, concluded that the phrase "good and sufficient cause properly shown" was intended to restrict and circumscribe the Board's authority to dispense with the Director's services. This phrase constitutes the bounds within which the Board must exercise its authority in determining whether it will dispense with the Director's services.
In the light of the foregoing statutes and decisions, it is my definite opinion that:
The power of an administrative agency to compel the appearance of witnesses before it grows out of the Act creating the agency and must be specifically provided and that its power is limited by the provisions of the statute.
Compulsory process is not authorized by Section 4, paragraph 2 of the Veterans Service Act or elsewhere in said Act, and that there is no general law of force providing for the Veterans Service Board or any other agency to invoke the aid of the Judiciary in.compelling the attendance of witnesses.
It is within the sound discretion of the Board to determine in the first instance whether any complaint filed against the Director, if sustained by proof upon a hearing, would constitute good and sufficient cause for his removal. If not, then no hearing is required: if so, then a hearing is authorized.
May I point out for your benefit that my entire staff of the Law Department has concurrf:d in the conclusions reached in this opinion.

PENSIONS-Department of Veterans Service The State Department of Veterans Service is the agency of the State responsible for veterans' affairs and is the proper authority to receive grants from the Federal Government under Public Laws 376 and 679.

Hon. C. Arthur Cheatham, Director Department of Veterans Service

September 17, 1946

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

following:

"Will you, at your earliest convenience, please furnish this Department a ruling whether or not-the State Board of Veterans Service is the authorized

and legal agent responsible for veterans' affairs of the State of Georgia, and

is authorized to appoint itself, the Board, as the approving agency for the State

of Georgia on matters pertaining to Public Laws 376 and 679.

"This information has been requested by the officials of the Veterans Administration, Washington, D. C., in order that they may know whether thE:: State

Board of Veterans Service is the authorized and legal agent to receive Federal

funds."

The answer to your question will be found in the Act creating the "State

Department of Veterans Service." (Ga. L. 1945, pp. 319-325). Section 1 of this Act provides in part as follows:

"There is hereby created within the State Government a State Department

of Veterans Service. The Department of Veterans Service shall be adminis-

tered by a State Director of Veterans Service and a State Board of Veterans

463
Service comprised of seven members. The Director of Veterans Service shall be the executive officer of the Department and shall be charged with the administrative responsibilities of the Department in conformity with the orders, rules and regulations of the State Board of Veterans Service.... The State Department of Veterans Service shall succeed to and be vested with all powers and duties now conferred by law upon the State Veterans Service office and the officers thereof, together with such additional powers and duties as may hereafter be provided... "
Section 4 provides in part as follows: "The State Board of Veterans Service: shall recommend to the Director matters of policy, procedure and work projects. It shall be the duty of the Director to effectuate and carry out the laws of the State pertaining to veterans, and likewise to perform the duties required of him by law and by regulation of the Board. "The State Board of Veterans Se:rvice shall select a Director of Veterans Service who shall serve a term of four years who shall be Chief Executive and Administrative Officer of the Department and the Board..." Section 5 provides in part as follows: "The Director, as Exe:cutive Officer of the Department of Veterans Service and the Board shall be in charge of the administration of all matters pertaining to veterans' affairs under the terms and provisions of this Act, and in conformity with rules and regulations of the Board.... " The above provisions of law create a "State Department of Veterans Service and provide that this Department shall be administered (1) by a State Director of Ve:terans Service, and (2) a State Board of Veterans Service. While the Director of Veterans Service is named as the Executive Officer of the Department of Veterans Service, he is nevertheless required to discharge his administrative responsibilities "in conformity with the orders, rules and regulations of the State Board of Veterans Se:rvice." The Director is likewise "Chief Executive and Administrative Officer of the Department and the Board."
The provisions of Sections 1, 4 and 5 herein quoted, place a joint responsibility on the Director, as Executive Officer of the Department of Veterans Service and the State Board of Veterans Service in the: administration of all matters pertaining to the affairs of veterans.
Section 6 of the Act provides as follows: "The State Department of Veterans Service and the State Board thereof is empowered to accept gifts, grants and other contributions from the Federal Government, or from any other governmental unit, and gifts, grants, donations or contributions of mone:y, facilities and services from individuals and organizations, in addition to any funds appropriated by the State."
The above provision of law authorizes the "State Department of Veterans Service and the State Board thereof" to accept gifts, grants and other contributions.
I am of the opinion from the above provisions of law that the State Department of Veterans Service is the proper legal authority to rece:ive gifts, grants and other contributions from the Federal government. This is true bec~use the State Department of Veterans ServicE: is administered and operated under the joint authority and control of the Director of the Department of Veterans Service and the State Board of Veterans Service:. While Section 6 of the Act above referred to does specifically empower the State Department

464
and the State Board to accept gifts, the same result is achieved by having the State Department of Veterans Service make such an acceptance. It would be duplicitous to hold that the State Board had to act twice in matters of this nature-that is, first act jointly and concurrently with the Director as the State Department of Veterans Service, and secondly, to act in its individual capacity as the State Board of Veterans Service.
It is the "State Department of Veterans Service" which is authorized to receive Federal funds and not the State Board of Veterans Service acting independ@tly. This view is further strengthened by the title of the Act which provides in part as follows:
"To create a State Department of Veterans Service; to provide for a Board of Veterans Service and Director; .. "
The title clearly shows that the Legislature intendE:"d to establish the State Department of Veterans Service as the authoritative body over matters pertaining to veterans' affairs. Likewise, in Section 6 above referred to, the Legislature prescribed "The State Department of Veterans Service and the State Board thereof" as being empowered to accept gifts and contributions. The word "thereof" clearly indicates that the State Board is to be considered as a part of the State Department of Veterans Service. It is therefore my opinion that "The State Department of Veterans Service" is the State agency duly authorized by law to receive grants and other contributions from the FedE:"ral government.
It is understood that this opinion and the reasoning advanced herein is restricted to the question propounded, and is not intended to deal with other questions related to the power and authority of thE:' State Board of Veterans Service, the Director, or the State pepartment of Veterans Service.
PENSIONS-Department of Veterans Service
The State Department of Veteran's ServicE:' has been relieved of responsibility for veterans educational affairs by the Act of 1947, pp. 1143-1151 vesting such authority in the Veterans Education Council.
July 3, 1947 Hon. Henry Persons, Chairman State Board of Veterans Service
Your letter of June 25th, in which you pose the quE:"stion as to whether or not the State Department of Veterans Service has been properly relieved of the responsibility for veterans educational affairs, as per Act No. 300 of the General Assembly of 1947, has been received. In your position as Chairman of the Veterans Service Board, you have requE:"sted an official opinion of the Attorney General of Georgia regarding that query.
Article 5, Section 6 of the 1945 Constitution of the State of Georgia provides in full as follows:
"Paragraph I. Veterans Service Board; creation; mE:'mbership, powers and duties; terms of office; Director.-There shall be a State Department of Veterans Service and Veterans Service Board composed of seven members, who shall have such control, duties, powers and jurisdiction of the State Department of Vetuans Service as shall be provided by law. Said Board shall appoint a director who shall be the executive officer of the Department. Members of the Board shall be appointed by the Governor with the advice and consent of the

465
Senate and all members of the Board and the Director shall be veterans of some war in which the United States has engaged.
The first appointments shall be for terms of one, two, three, four, five, six and seven years. Thertafter all terms and appointments, except in case of vacancy, shall be for seven years. Vacancies shall be filled by appointment of the Governor."
It is to be stated here that the above quoted section of the Constitution is the only section wherein any reference of any nature is made to the State Dtpartment of Veterans Service, the Veterans Service Board or the Director of Veterans Service. It is further to be nottd that under the Constitution the State Department of Veterans Service, and the Veterans Service Board are not exclusively charged with administering veterans affairs so as to be inclusive of all matters pertaining thereto.
By its terms the above section of tht Constitution is rather explicit to the effect that the State Department of Veterans Service and the Veterans Service Board shall have only such control, duties, powers and jurisdiction as shall be provided by law. It follows, therefore, that without an enabling statute the State Department of Veterans Service and the Veterans Strvice Board would have no authority over any portion of Veterans Service, even though in fact the State Department of Veterans Service and tht Veterans Service Board were in existence as a result of a mandate of the Constitution. The Department of Veterans Service and the Veterans Service Board, thertfore, have only such powers as are conferred upon them by the laws of the General Assembly of Georgia.
The enabling Statute setting forth the function, duties and responsibilities of the State Department of Veterans ServicE: is found in the Act approved March 8, 1945 (Ga. L. 1945, pp 319-325).
Section 11 of the said Act provides that the Director of Veterans Service shall maintain a division of the Department of Veterans Service dealing exclusively with the tducation of war veterans.
Section 6 of the said Act empowers the State Department of Veterans Service and Veterans Service Board to accept gifts, grants and other contributions from the Federal Government.
The opinion dated September 17, 1946, addressed to Hon. C. Arthur Cheatham, Director, Department of Veterans Service, was based upon the above
Sections of tht Act. It is to be observed that the opinion referred to was based upon a Statute
and not upon the Constitutional provision providing for the establishment of the State Department of Veterans Service. It follows, therefore, that the Statute and the opinion referred to are both subJect to change in accordance with the wishes of the General Assembly, as the General Assembly may amend its Acts as it sees fit, so long as other Constitutional provisions are not violattd. When the General Assembly does in fact amend one of its previous Acts, the opinion rendered by the Attorney General upon the previous Act is o" necessity also amended, and a subsequent opinion must conform to the provisions of
the new Act. The General Assembly in 1947 by Act No. 300 amended the Ga. Laws of
1945, pages 319-325, by providing for tht establishment of a Veterans Educa-
tion Council. Section 10 of the Veterans Education Act of 1947, (Act No. 300), specifi-

466
cally provides that all functions, powers and duties with respect to the education of veterans heretofore exercised by either the State DE:partment of Veterans Service, the Veterans Service Board, or the Director as provided for under Article 5, Section 6, of the Constitution of Georgia or as prescribE:d in the Act approved March 8, 1945 (Ga. L. 1945, p. 319), are transferred to and vested in the Veterans Education Council; which said Veterans Education Council was established by Section 5 of the above referred to Act.
Therefore, if Section 10 of the Veterans Education Act of 1947 bE: valid, it would properly and unequivocally relieve the State Department of Veterans Service and Veterans Service Board of the duties and responsibilities regarding veterans educational af~airs.
It is obvious that thE: portion of Section 10 which attempts by legislative enactment to transfer such functions, powers and duties with respect to education of veterans as have theretofore been exercised by either the State Department of Veterans Service, the Veterans Service Board or the Director, as provided for under ArticlE: 5, Section 6, of the Constitution of Georgia, is in fact valid and unconstitutional in that it attempts to change and amend the Constitution of the State of Georgia in an illegal manner.
It should be noted, among other requirements, that the proper method for instigating amendments to the Constitution is provided for in Article 13 of the ConstitutiQn, whE:rein it is stated that "Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives and if the same shall be agreed to by two-thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the yE:as and nays taken thereon. The General Assembly shall cause such amendment or amendments to be published in one or more newspapers in each Congressional District, for two months previous to the time of holding the general election at which election members of the General Assembly are chosen; and shall also provide for a submission of such proposed amendment or amendments to the people at said next general elE:ction, and if the people shall ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the General Assembly voting thereon, such amendment or amendments, shall become a part of this Constitution....."
There is nothing in the Veterans Education Act of 1947 that would indicate that it was intended to be an amendment to the Constitution or that passage of the said Act was brought about by a two-thirds majority of the Senate and House of Representatives.
It is, therE:fore, to be understood that in so far as Section 10 of the Veterans Education Act of 1947 attempts to transfer the functions, duties and responsibilities regarding the education of veterans from the State Department of Veterans Service, as provided for under Article 5, Section 6, of the Constitution of Georgia to the Veterans Education Council, it is invalid, illegal and unconstitutional.
It is basic in law that the Legislature by a simple enactment cannot amend or abridge the Constitution, as the Constitution of thE: State is, next to the Federal Constitution, Federal Laws and Treaties, the supreme law of the State.
But the question arises-Does the partial unconstitutionality of the Section make it mandatory that the entire Section be construed as unconstitu-

467
tiona!? it has repeatedly been held by the Supreme Court of Georgia that such is not necessarily so. It is a principle of constitutional law that mere incidental details may be stricken out, if to do so does not impair the general scheme of the enactment.
In Leonard v. American Life Annuity Co., 139 Ga. 275, wherein the Court had declared a portion of a municipal ordinance unconstitutional, the Court held that, nevertheless, since the unconstitutional and invalid provision was not so essential and inseparable a part of the general legislative purpose, that it was not necessary that the entire Section of the Act must fall with the invalid portion. It was specifically held in that case that such invalid clause could be stricken from the Section and the remainder be left to stand.
Is the unconstitutional provision of Section 10 of the Veterans Education Act of 1947, as noted above, such an integral and essential part of the whole lOth Section of the Act, that the entire Section must fall with it, or can this void provision be stricken and leave the rest to stand? It is quite apparent that the invalid portion is not so connected with the gene:ral scheme of the statute that it cannot be stricken out and effect be given to the legislative intent. This is so for a number of reasons, the first being that the Section of the Constitution referred to actually in no manner provides for any functions, powers and duties with respect to education of vete:rans. It merely provides for the creation of the Department of Veterans Service and the Veterans Service Board and the election of the Director, coupled with the proviso that such duties, powers, jurisdiction and control to be exercised by the Department, should be provided by Legislative enactme:nt. Thus, the invalid portion of Section 10 is a mere superfluity and is completely non-essential.
Further, in Section 10, the enabling statute. (Ga. L. 1945, pp. 319-325), which vested the power and duties regarding veterans education in the Department of Veterans Service was specifically amende:d so as to transfer and vest all matters tegarding veterans education to and in the Veterans Education Council. This was a valid amendment and quite within the prerogative of the General Assembly. To give effeCt to this Section is to give the breath of life to the intentions of the General Assembly in passing the Act. Although a statute cannot be sustained in whole, the Courts will .uphold it in part if to do so will correspond with the main purposes which the Legislature sought to accomplish by its enactment, and if after striking the invalid part, enough remains to accomplish that purpose. See Lee v. Tucker, 130 Ga. 43; Pearson v. Bass, 132 Ga. 117; National Cotton Oil Co. v. Texas, 197 U. S. 115.
From the foregoing it is, therefore, my opinion that the Board of Veterans Service, the State Department of Veterans Service and the Director of Veterans Service are relieved of full responsibility regarding veterans education in accordance with the provisos found in Act No. 300 of the General Assembly of 1947, as of the effective date of the said Act.

468
PENSIONS-Ex-Confederate Soldiers and Sailors Where a Confederate pensioner has once been enrolled the pension should be continued until his death or until a change of his legal rE::sidence from this State.
April 9, 1946 Miss Lillian Henderson, Director Dtpartment of Confederate Pensions and Records
This will acknowledge your letter of April 8, in which you state: "We have several Confederate pensioners who have been residing outside the State of Georgia for more than a year. Will you advise us whether these pensioners should be continued on the Confederate pension rolls of this State?" It appears that a request was made by you on May 19, 1939, to the Hon. Ellis Arnall, then Attorney General, for advice as to what action to take relating to the payment of pensions to persons who have been living out of the State for sometime. In response to this request the Attorney General rendered his opinion on May 24, 1939, which is published in Opinions of the Attorney General, 1939-41, pages 429, 430, from which I quote as follows: "I think that the matter submitted to me is controlled by the provisions of Section 78-217 of the Code which provides as follows: 'After an applicant has been enrolled as a pensioner, subsequent payments shall be made upon sworn application of the beneficiary, accompanied by the certificate of the ordinary of his county, showing continued residence in this State.' "Thus, where a pensioner has once been enrolled it is your duty to continue to pay said pension to the enrolled pensioner until you shall have received notice of his death, provided he continues residence in this state. This fact may be shown by the certificate of the ordinary of the county of his residence. "The merE:: fact that a Confederate pensioner is without the boundaries of this state does not necessarily mean that he has ceased to be a resident of Georgia. Under the law of this state residence is largely a matter of intent which may be inferred from a number of circumstances and facts. It is frequently true that an aged pensioner makes protractE::d visits to children in other states, but if it is the intention of the pensioner to ultimately return to this state, I think that he would be entitled to continue to receive his Georgia pension. As a matter of fact, I think that the pension regulations in such cases should be libE::rally construed so as to give deserving pensioners every benefit of law and facts in connection with their right to receive pensions." There has been no change in the law set out in Section 78-217 of the Code of 1933, Annotated, since the date of the opinion referred to and quoted in part above, in which I concur. I am returning herewith the file forwarded to me in your letter.

469

PENSIONS-Merit System
(1) The ddinition of "veteran" in the Federal Veterans Preference Act of 1944 may be used in applying the provisions of the State Constitution guaranteeing preference under State and local civil service systems. (2) "Equal preference . . . as now exist under FE:deral Civil Service Laws" means as existed at the time of adoption of the 1945 Constitution. (3) The preference under State and local civil service systems accorded veterans by 1945 Constitution includes wives of disabled veterans and widows of decE:ased veterans.

Hon. Edwin L. Swain, Director

October 16, 1946

State Personnel Board

This will acknowledge your letter of October 8, propounding questions pertaining to veterans.

In view of the number of questions contained therein, I will endeavor to

answer each separately.

You asked in question (1): "What is a veteran, and in what branches of

the Armed Forces must he have served in order to be eligible to receive

prefE:rences?"

In Title 5, Par. 851 (4), U.S.C.A., Veterans Preference Act of 1944,

veterans are defined as, in my opinion, those service men and women who

served on active duty in any branch of the Armed Forces of the United States,

during any war, or in any campaign or expedition (for which a campaign badge

has beE:n authorized), and who have been separated therefrom under honor-

able conditions. The branch of service, i.e., Army, Navy, Marine Corps, Coast

Guard, or component parts thereof, is immaterial so long as the ex-serviceman

or woman served in some branch on active duty during a war, or a campaign

or expedition, in which the United States was involved. To be eligible undH

the Federal Civil Service laws ,the above conditions must be fulfilled and it is my

opinion that the wording of the Constitution of the State of Georgia in Sec-

tion 2-1924 of the Code of 1933, as amended, embraces the above interpreta-

tion in the words "honorably discharged vetE:rans of any war."

You ask in question (2): "What does 'equal preference accorded to such

veterans as now exist under Federal Civil Service Laws' mean?"

It is my opinion that the use of the words "Federal Civil Service Laws"

indicates that the intent of tht people in this expression in The Constitution

is that any schE:me or plan for a civil service system within the State must

provide preferences for veterans in the same or similar manner, but in either

case, equal to the preferences provided for such veterans by the Federal Gov-

ernment in Federal Civil Service laws passed by Congress. As there are no

specific laws set out in The Constitution, but merely the statement "as now

exist under Federal Civil Service Laws", I am of the opinion that Section

2-1924 embodies all Federal Civil Service laws that establish or otherwise

provide a preference for veterans over other employees of the Federal

Government. I have pointed out in the above paragraph a guide or definition of a vet-

eran and that equal prE:ferences under Federal Laws must be accorded such

veterans, but the question now arises as to the meaning of the words "now

exist". Does the Constitution of the State limit the preferences to be estab-

lished to those existing under Federal laws at the date of adoption of the

470
amendment to the Constitution or does it include any Federal law providing additional preferences or changing the preferences that may be enacted at some date after the adoption of the amendment, which was August 7, 1945?
In the case of Leach v. Auwell, 138 N. Y. S. 975, 154 App. Div. 170, it is said: "Under General Construction Law, Consol. Laws 1909 c22, Par. 34, providing that the term 'now' in a provision referring to laws in force or to facts as existing, relates to the laws in force or to the facts existing immediately before the taking effect of the provision, the word 'now' in the Constitutional provision referring to the jurisdiction of the Courts 'now' exercised, relates to laws in force at the adoption of the Constitution, and to the jurisdiction existing immediately before the taking effect of the Constitution."
In In re McNabb, 175 F. 511, 513, it appears that a statute providing for the naturalization of aliens honorably discharged from military service on proof of one years residence in the United States, requires that the court shall, in addition to such proof of residence and good moral character as "now" provided by law, be satisfied by competent proof of the applicant having been honorably discharged from the service of the United States. HELD: That the word "now" is limited to the laws existing at the enactment of the Statute and didn't include subsequent enactments.
In Beard v. Smith, 22 Ky 430, it was held "the words 'now existing' as used in the Act December 18, 1789, providing that all private rights of lands within a certain district shall be determined by the laws now existing in the State, signify the laws in force at the date of the enactment."
Although there does not appear to be an interpretation by the Courts of Georgia on the words "now exist", I am of the opinion that the words as used in Article 3, Section 7, Par. 24, Code Section 2-1924, Constitution of Georgia, means that the Federal Civil Service laws in force at the time of the adoption of the 1945 Constitution of Georgia are the laws by which any civil service scheme of this State must be governed in determining the "equal preferences" to be accorded veterans and not Federal Civil Service laws enacted subsequent to the adoption of said amendment to The State Constitution.
You ask in question (3) : "Does the phrase 'honorably discharged veterans of any war' include or exclude those persons serving with the Armed Forces during peace time?"
Referring to my answer to question 1, above, in that a person must have active service during a war and have been separated under honorable conditions in order to be eligible to any preferences accorded by Section 2-1924 of the Code, I am of the opinion that the first prerequisite in determining a veteran's eligibility would be his or her service and if the claimant does not have any active service during any war; he is excluded. To say this law excludes service personnel who serve during peace time would be inaccurate as many people may serve during peace time and also during a war. However, a person who serves during peace time, but not in time of war, is excluded as such person, in my opinion, is not a veteran of any war.
You ask in question 3 (a): Does the phrase "honorably discharged veterans of any war" include or exclude the wives and widows of such veterans?"
In connection with this question, a construction of Section 2-1924 of the Code in its entirety is deemed necessary to determine the desires set forth in the Constitution. The section as a whole is construed to require any civil service scheme of the State to provide for veterans the same or equal preferences

471
that are provided for such vetHan by the Federal Civil Service laws. That is to say, that a veteran eligible for a preference, who applies for a State Civil Service position or is given an examination therefor will be accorded preferences equal to those that would be accorded if he or she was being examined for a Federal position by the Federal Civil Service Commission. This leads to the opinion that it is the desire of the people, as set forth in this Section of the State Constitution, that the preferences accorded veterans by Federal Civil Service laws, in force at the time of the amendment to the Constitution, be likewise accorded by any State Civil Service scheme. Although not expressly provided for in Section 2-1924 of the Code, the Section is considered sufficiently broad in scope and in intent to embrace within it all persons accorded preferences under the provisions of Federal Civil Service laws. Therefore, as the Veterans Preference Act of 1944 does include provisions for the wives of service connected disabled veterans as have themselves been unable to qualify for any civil service appointment, and the unmarried widows of deceased veterans who were separated under honorable conditions, it is my opinion that. such wives and widows are entitled to preferences under a State Civil Service scheme as such preferences may, in effect, be considered as a service or preference extended to the veteran even though he may be deceased. You will note that only the wives of disabled veterans and widows of deceased veterans are to be accorded such preferences. Wives of veterans who were not disabled are not included within the ,provisions of the Veterans Preference Act.
PENSIONS-Servicemen's Benefits The Act of 1945, p. 434, permitting a minor who is eligible for benefits under the federal Servicemen's Readjustment Act of 1944 to make a valid and binding contract is not unconstitutional.
November 16, 1945
Hon. C. Arthur Cheatham, Director Department of Veterans Service
I am pleased to acknowledge your letter of November 6th, in which you state the following:
"The Loan Guarantee Office of the Veterans Administration has asked us to request you to give us an opinion as to the validity and constitutionality of Act 391, 1945 General Assembly, approved March 9, 1945."
"It appears that loan companies are refusing to make loans to veterans who are minors on the basis that the loan may be declared unconstitutional and that such contracts in that event would be null and void."
Perhaps the loan companies referred to in your letter are refusing to make loans to veterans who are minors because of certain former statutes enacted prior to the Act approved March 9, 1945, above referred to. Section 79-208 of the Code provides:
"The law prescribes certain ages at which persons shall be considered of sufficient maturity to- discharge certain civil functions, t~ make contracts, and to dispose of property. Prior to those ages they are mmors, and are on account of that disability unable to exercise these rights as citizens."
Section 74-104 of the Code provides:

472
"The age of legal majority in this State is 21 years; until that age all persons are minors."
Section 20-201 of the Code provides: "Generally the contract of an infant is voidable except for necessaries. In order to charge an infant for necessaries, the party furnishing them must prove that the parent or guardian fails or refuses to supply sufficient n~:;ces saries for the infant. If, however, the infant receives property, or other valuable consideration, and after arrival at the age of majority retains possession of such property or enjoys the benefits of such valuable consideration, such a ratification of the contract shall bind him." On March 9, 1945, the Servicemen's B~:;nefits-Minors' Contract Act (Ga. L. 1945, pp. 434-435) was passed which provides in part as follows: "Any minor eligible for the benefits under the Servicemen's Readjustment Act of 1944, Title III of Public Law No. 346 - 78th Congress and any amendments ther~:;to, is hereby empowered to make valid and binding contracts, deeds, deeds to secure debt, liens, promissory notes, or other written obligations for, or in connection with, a loan guaranteed in part or in full by the United States or any instrumentality thereof, or for which there is a commitment to so guarantee or for which a conditional guarantee has been issued, under the Servicemen's Readjustment Act of 1944, Title III of Public Law No. 346 - 78th Congress and any am~:;ndments thereto, as if said minor had at the time of making such contract or other written obligation arrived at the age of majority." Section 2 provides that the securing by a minor of a loan guaranteed under Title III of the aforesaid Act "shall be a ratification of such purchase or acquisition and shall be as valid and binding on such minor as if he had ratified such contract after he had arrived at the age of majority." Section 3 provides: "All laws or parts of laws in conflict herewith are hereby repeal~:;d." It is an elementary principle of law that where the provisions of a later statute conflict with those contained in a former statute, the latter statute prevails. Any provision contained in a statute enacted prior to the Servicemen's Benefits-Minors' Act approv~:;d March 9, 1945, which contains a provision contrary to this later Act is now repealed and if no force and effect, insofar as the inconsistency between the two acts is concerned. This cardinal rule of statutory construction is stated in Cairo Banking Company v. Ponder, 131 Ga. 710, as follows:
"We recognize the rule that where two acts of the Legislature are inconsistent, the last passed contains the controlling expression of th~:; legislative intent."
The rule is well settled that where two acts or two sections of an act are in conflict, the act or section last passed prevails, such being considered the last expression of the law making power on the subject. See U. S. Fidelity and Guaranty Co. v. Toombs County, 187 Ga. 551; Atlanta Finance Company v. Brown, 187 Ga. 729, 731; Darby v. DeLoach, 190 Ga. 501.
From the above cited authoriti~:;s, I am of the very definite opinion that the Act approved March 9, 1945, empowers minors who are veterans and eligible for benefits under the Servicemen's Readjustment Act of 1944 to make a valid and binding contract. This Act prevails over any prior legislation which restricted or prevent&d minors from entering into valid contractual obligations

473
insofar as service men are concerned. There is no reason why a minor cannot make a valid and existing contract within the purview of this Act, and certainly any loan company or other person making such a loan is given ample protection against the minor attempting to evade his contract because of his age.
In your letter you state that some loan companies are refusing to make loans to these veterans because they contend the Act approved March 9, 1945, is unconstitutional. I have very carefully examined this Act and it is my opinion that the Act is constitutional. It does not conflict with any provision of the Constitution and the legislature was clearly authorized to grant permission to veterans to make a binding contract as stated in the aforesaid act, even though the veteran was under 21 years of age.
PENSIONS-Veterans Education Council The appointments of members of the Veterans Education Council may not take effect until July 1, 1947, the effective date of the Act creating the Council.
April 25, 1947 Hon. M. E. Thompson Acting Gov~::rnor
Under date of April 23rd, you requested my opmwn as to the effective dates of appointments of the members of Veterans Service Board.
Inasmuch as the Veterans Service Board appertains to the Department of Veterans Service, and as this Board was appointed in April, 1945, by Governor Ellis Arnall, and has since that time been performing its duties, it is presumed that the question you propound refHs to the dates of appointments of the members to the Veterans Education Council.
The Veterans Education Council was established by the General Assembly in 1947, and approved by the Governor on March 27th, 1947. It is provided in the law that the Act be cited as "The Veterans Education Act of 1947."
Section 23 of the Veterans Education Act of 1947 provides as follows: "Provisions of this Act shall not become effective until July 1st, 1947." Section 5 of the said Act provides in part as follows: "There is hereby established within the state government a Veterans Education Council which shall be composed of nine members, to be appointed as hereinafter directed, who shall serve for a term of four years and until their successors shall be selected and qualified." It is to be perceived that construing the portion of Section 5, quoted above, together with Section 23 of the Veterans Education Act of 1947, the terms of office of the nine members of the Veterans Education Council are to be for a term of four years and that said terms shall not become effective
until July 1st, 1947. It is, therefore, my opinion that the terms of the members may begin on
July 1st, 1947, or after that date in the Governor's discr~tion. However, in no case may the terms of the office of the Veterans EducatiOn Council become effective prior to July 1st, 1947.

474
PENSIONS-Veterans Education Council; Merit System (1) Employees of the Veterans Education Council are under the Merit System after completing a six-months probationary period of employment. (2) Sections 16, 17 and 18 of the Veterans Education Act of 1947, p. 1143, do not conflict with Art. 3, Sec. 7, Par. 24 of the Constitution.
June 9, 1947 Hon. Edwin L. Swain Director, Merit System of Georgia
Your letter of May 29th, in which you posed five distinct questions and requeste:d an official opinion upon each of them has been received. Each question will be taken up numerically.
1. Your question is: "Does Section 19 of the above Act (Act 300) place the employees of the Veterans Education Council therein established, effective as of July 1, 1947, under the jurisdiction of the State Personnel Board?"
It is my opinion that Section 19 of the Veterans Education Act of 1947 specifically places the employe:es of the Veterans Education Council under the jurisdiction of the State Personnel Board, as of the effective date of the Act. In this connection, it should be observed that Section 23 provides emphatically as follows:
"Provisions of this Act shall not become effective until July 1, 1947." From Section 23, which applies to the whole Act, it is quite obvious that the intention of the General Assembly in passing the Veterans Education Act of 1947, was that the same was to be:come operative as law on July 1, 1947. It is to be observed that by Section 25 of the Veterans Education Act of 1947, Section 11 of the Act approved March 8, 1945, (Ga. L. 1945, p. 319), was repealed in its entirety. Section 11 of the Act approved March 8, 1945, required the Director of Veterans Service to maintain a division of the Department of Veterans Service dealing exclusively with education of war veterans. Veterans Education Act, be:coming effective on July 1, 1947, immediately relieves as of that date, the Director of Veterans Service of any responsibility or right to maintain a Division dealing exclusively with education of war veterans. Section 2 of the Veterans Education Act of 1947 specifically declares the public policy of the State and the intent of the said Act to be to assist veterans in securing the educational benefits to which they are entitled. It is quite obvious when these: provisions of the two Acts are considered together that were the statement contained in the last sentence of the second paragraph of Section 6 of the Veterans Education Act, wherein it is stated that, "Said provisions shall be effective four months after enactment of this law", to control as to the effective date of the Act that there would be: a lapse from July 1st to July 27th, and the represented and declared public policy of the State and the intent of the Veterans Education Act of 1947 would be completely abrogated. It seems quite clear, therefore, that it was the intention of the Ge:neral Assembly that the entire Act, including all of its provisions, should become effective on July 1, 1947. 2. Your second question is: "Are employees of the Veterans Education Council fully subject to the provisions of the Act approved February 4, 1943, (Ga. Laws 1943, pages 171-177) providing for the establishment of a Merit System Council in the same manner as employees designated in that Act?" Section 19 of the: Veterans Education Act of 1947 provides as follows:

475
"All employees of the Council except the Director shall be classified and governed by such rules of job classification, appointment, promotion, demotion, dismissal, personnel administration, basis of compensation, probationary employment, retirement and seniority privileges and other employment standards as may now or hereafter be set up under such system of merit control as may be authorized by th~:> Act approved February 4, 1943 (Ga. Laws 1943, pages 171-177), providing for the establishment of a Merit System Council, or any amendment thereof. Provided, however, that no employee shall be subject to removal after six months of probationary service ensuing from the date of approval of this Act, except upon charges duly prefE:rred and substantiated under such rules as may be promulgated by said Merit System Council, or whatever successor or superseding agency may hereafter 'be established by law to administer standards of competent personnel and for the protection of the tenure, during satisfactory conduct, of the employees of any branch of the State Government. Provided, further, that the principal accounting employee and the personal secretary to the Director shall be exempt from the provisions of this Section."
From reading Section 19, quoted above, it is clear that the General Assembly intendE:d for all employees of the Veterans Education Council, except the Director, the principal accounting employee and the personal secretary to the Director, to become fully subject to the provisions of the Act providing for the establishment of a merit system under the Veterans Education Act of 1947 as authorized by the Act approved February 4, 1943, (Ga. L. 1943, pp. 171-177), except in so far as there might be specific differences enumerated in SE:ction 19.
3. Your third question is: "If the facilities and services of the State Personnel Board are to be extended to the Veterans Education Council, on what basis is the State Personnel Board to be compensated for such services?"
This question appears to be one which involves an administrative policy. It has been the policy of the Department of Law not to render opinions on questions which are purely administrative in nature, and to render opinions only on legal questions. Therefore, since this question is administrative, no opinion
is being rendered upon it. 4. Your fourth question contains three separate par~s, the first of these
is: "What is the meaning of the second sentence, Section 19 of Act 300?" In my opinion, this sentence which provides as follows:
"Provided, however, that no employE:e shall be subject to removal after six months of probationary service ensuing from the date of approval of this Act, except upon charges duly preferred and substantiated under such rules as may be promulgated by said Merit System Council, or whatever successor or superseding agency may hereaftE:r be established by law to administer standards of competent personnel and for the protection of the tenure, during satisfactory conduct, of the employees of any branch of the State Government. . . ." is intended to provide that no employee who has satisfactorily served six months probationary service can be summarily discharged excE:pt upon some substantiated cause or violation of such rules as may be set forth by the merit system for the guidance of such personnel. Exclusive authority is given the Merit System Council, or its successors in office, to set up such a criteria of standards to assure the maintenance of competE:nt personnel.
(a) The next subsection of question 4, specifically asks: "What is the

476
meaning of the word 'removal' as used in this sentence?" (Second sentence Section 19 of the Veterans Education Act of 1947).
It is my opinion that the word "removal" clE:arly means and is synonymous with the word "dismissal".
(b) The last subsection of your fourth question is as follows: "What is the meaning of the word "probationary" as used in this sentence?"
By this sentence, and specifically when read in its proper position with the whole of Section 19, it clearly seems to provide for the right of the Veterans Education Council to discharge with or without cause such employees as may be under the Veterans Education Council who have not served a probationary pE:riod of six months. It seems, therefore, that the Veterans Education Council may discharge any employee who has not served this six months probationary period, even though, by the Act itself, the employees of the said Council are subject to the rules and regulations of the Merit System from July 1, 1947. After six months of probationary service, the Veterans Education Council would not have the authority to discharge employees except in full accordance with and under such rulE:s and regulations as may be provided by the Merit System Council. The use of the word "probationary" apparently is intended to mean that no employee is a full time employee, endowed with certain protection from removal from office, until he has acted in a capacity as an employee for a pE:riod of six months under the Veterans Education Council.
5. Your fifth question is: "What is the effect on Sections 16, 17 and 18 of Act 300 as they may be affected by Article III, Section VII, Paragraph XX{V of the Georgia Constitution of 1945?"
Section 16, Veterans Act of 1947, in my opinion, does not conflict with Paragraph 24, Article 3, Section 7 of the Constitution of the State of Georgia, as by its terms the said Section does in fact provide for the employment of honorably discharged vetuans of any war.
In my opinion Section 17 of the Veterans Education Act of 1947 is not in conflict with Paragraph 24, Section 7, Article 3 of the Constitution of Georgia.
In my opinion Section 18 of the Veterans Education Act of 1947 is not in conflict with Paragraph 24, Section 7, Article 3 of the Constitution of Georgia. Section 18 specifically provides that Sections 16 and 17 of the Veterans Education Act of 1947 shall not apply to persons who have for six months prior to the approval of the Act been in the employ of the Veterans Service Department. However, it is to be noted that the Act providing for the Department of Veterans Service, itself, specifically provides for the employment by preference of honorably discharged veterans who served in any war.
PENSIONS-State Board of Veterans !?ervice A member of the State Board of Veterans Service is ineligible to hold any othE:r State office.
April 14, 1947 Hon. C. Arthur Cheatham, Director Department of Veterans Service
Your letter of April 2nd received. You request my opinion on the following question:
"Can a member of a Constitutional Board of a Department of State Government serving on a non-salary basis continue to hold said office and at the

477
same time serVE:' as an appointed commissioned Assistant in another State Department with pay?"
Since your letter states that you are requested by the Board of Veterans Service to propound the question, I am presuming that you refer to the State Department of Veterans Strvice and Veterans Service Board.
Paragraph 1, Section 6 of Article 5 of the Constii1tion of 1945 establishes a constitutional Veterans Service Board, the members of which are appointed by the Governor. The members of the Board are State officers.
Section 89-101 of the Code of 1933 provides in part as follows: "The following ptrsons are held and deemed ineligible to hold any civil office, and the existence of any of the following states of facts shall be a sufficient reason for vacating any office held by such person, but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto, viz.: 4. Persons holding any office of profit or trust under, the Government of the United States (other than that of postmaster and officers of the Reserve Corps of the United Statts Army, Navy or Marine Corps), or of either of the several States, or of any foreign State." I construe the provision quoted above to mean that the same person can not legally hold two States offices of profit or trust. While members of the Board of Veterans Service do not rtceive a salary the office is one created by the Constitution and is an office of trust under the State Constitution. A member of the Board who has been appointed thereto by the Governor is ineligible to hold another office of the State in my opinion.
PERSONS-Loss of Civil Rights (Unofficial) Conviction rather than fine or imprisonmtnt deprives a person of his civil and political rights under the Constitution.
April 19, 1946
Hon. William Anthony Gaines 2136 West Jefferson Street Philadelphia 21, Pennsylvania
Replying to your inquiry regarding the loss of civil and political rights upon conviction of a crime, Article 2, Section 2, Paragraph 1, of the Constitution of Georgia provides that certain classes of persons shall not be permitted to register, vote, or hold any office, or appointment of honor, or trust in this State, and enumerates, among others, the following:
"Those who shall have bten convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned."
A "crime involving moral turpitude" has been held to be one which is "mala in se," that is, bad within itself, and not evil merely because some statute prohibits the act as a matter, perhaps, of public welfare.
In the case of Jenkins v. The State, 14 Ga. App. 276, at page 279, the
Court said: " serious consequences in the way of punishment flow from the com-

478
mission of the act, even though the offender may not be subject to either fine or imprisonment."
In the same casf:, it was said: "In this State a convict is deprived of certain of the rights of a citizen, but is allowed to retain certain others; for instance, he has absolute freedom of contract, and the right to dispose of his property by will, and generally retains the enjoyment of all his property rights. He is, howevf:r, deprived of most of his personal rights ..." (p. 280, 281). Answering your specific questions, therefore, I would say that it is the fact of conviction which deprives a person convicted of his political rights, and subjects him to the restraint of his personal liberty, whethf:r or not the sentence is suspended or he is released on probation; and this deprivation con-
' tinues until the person is pardoned.

PERSONS-Residence (Unofficial) (1) Each House of the General Assembly is the judge of the qualifications of its members. (2) That a legal residf:llt of a county is absent from the county in the military service of the United States for a long period of time with no intent to change his residence does not effect a change.

June 5, 1946

Hon. Frank A. Majors

Claxton, Georgia

Your letter of June 1st received. You outline cutain facts and request

my opinion as to your eligibility to be elected as a member of the General

Assembly for the State of Georgia.

From the facts stated in your letter it is apparent that the principal ques-

tion involved is whether or not you are a resident of the County of Evans as

required by the Constitution of 1945. This question involves a statement of

facts which ordinarily would b: determined by a court. As hereinafter pointed

out the qualification of a member of the General Assembly is determinable by

the General Assembly itself. Therefore, under the law I can not express any

opinion on the question of facts. Without expressing any opinion as to your

qualifications, as a matter of information, I take pleasure in referring you to

certain provisions of the law which deal with the question involved.

Sectiton 6, Paragraph 1, Article 3 of the Constitution of 1945 relating to

the qualifications of members of the House provides as follows:

"The Representatives shall be citizens of the United States who have at-

tained the age of twenty-one years, and who shall have been citizens of this

State for two years, and for one year residents of the counties from which

electE>d."

Section 7, Paragraph 1, Article 3 of the Constitution of 1945 provides in

part as follows:

"Each House shall be the judge of the election, returns, and qualifications

of its members * * *'."



As stated above the question involves residence. Our Courts, by many

decisions, have recognized the distinction between legal and actual residence.

A person may be a legal resident of one place and an actual resident of an-

other. He may abid: in one State or a county without surrending his legal

479
residence in another if he so intends. See Hardeman v. Hardeman, 179 Ga. 34 (7); Section 79-406, Georgia Code of 1933; Worsham v. Ligon, 144 Ga. 707; Bush v. The State, 10 Ga. App. 544; Knight v. Bond & Bro., 112 Ga. 828; Alvaton Mercantile Company v. Caldwell, 34 Ga. App. 151.
In Rainey v. Taylor, 166 Ga. 476, the court held as follows: "Under the provisions of paragraph 1 of section 7 of article 3 of the constitution of this State, as embodied in Civil Code, Section 6430, the JUdge of the superior court did not have jurisdiction to hold, in quo warranto proceedings, that a member of the General Assembly of Georgia, who had been elE:cted to that position and who had been sworn in as a member, was ineligible or disqualified for membership in that body; and the demurrer raising the contention that the court was without jurisdiction should have been sustained." Under the provisions of the Jaws hereinbefore cited, it will be seen that th& intent of a person as to the place of his residence is involved. The fact that a person who is a legal resident of a county of the State of Georgia voluntE:ers and enters into the military services of his country, or is involuntarily drafted into the military services of his country, and by reason of such service is required to be without the confines of the county for a long period of time, where there is no intE:nt on the part of such a person to abandon his legal residence in the county, and where there is no intent on the part of such a person to adopt and make some other county or State his legal residence, would not, in my opinion, change the place of residence or disqualify a person as a voter, or interfere with his eligibility to hold an officE: in his home county.

PROFESSIONS, BUSINESSES AND TRADES-Barbers and Hairdressers A licensed barber may practice his profession while training as a beautician.

October 1, 1946

Ron. W. B. Horton, Chairman State Board of Barbtr and Hairdresser Examiners
This will acknowledge your letter of October 1st in which you request

this office to advise if a barber who is qualified as a barber under the Barber and Beauty Laws of Georgia and who wishes to train as a beautician in a beauty school would b& violating the law to work as a barber part time while

taking the beauty course. Section 84-401 of the 1933 Code as amended, defines the profession of
barbering and hairdressers. The language used in this section indicates that

they are to be considered as separate trades. Section 84-410 prescribes that hairdressers may learn their profession i.n
a btauty school or college, or under a hairdresser, and barber~ may .learn their

profession in a barber school or college, or under a barber. This section furt?er prescribes that such persons must have a certificate of registration showmg the capacity in which he is permitted to practice said occupation. Section

84-411 prescribes that the State Board of Barber and Hai:dresser Examiners shall have the right to pass upon the qualifications, appomtment, course of

study, and hours of study in said barber or beauty school or collegE:.

. .

It is noted that the provisions of Section 84-410 and 84-411 do not prohibit

a student from working at his trade or profession while studying to be a barber

480
or hairdresser, but does authorize the Board to prescribe the hours of study. Since in the instant case the student is a qualified barber, it is my ,opinion
that he is not prohibited from practicing his profession while training as a beautician in a beauty school, providing howEover, his practice is not conducted during the hours of study in the beauty school.
PROFESSIONS, BUSINESSES AND TRADES-Barbers and Hairdressers (1) The State Board of Barber and Hairdresser Examiners may not require all applicants to have studied or trained for 18 months before being eligible to take the examination. (2) The State Board of Barber and Hairdresser Examiners may not, by regulation, permit only one person at a time to train under a regularly licEonsed barber or beautician.
October 27, 1947 Hon. W. B. Horton, Chairman State Board of Barber and Hairdresser Examiners
This will acknowledge your recent inquiry wherein you ask for an opinion upon the two specific points following:
(1) Does the Board of Barber and Hairdresser Examiners exceed its authority in requiring all applicants for licensing for occupations listed under Chapter 84-4 of the Georgia Code of 1933 to have studied or trained for an eighteen months' period in the particular occupation before being eligible to apply for the required examination?
(2) Did the Board of Barber and Hairdresser Examiners exceed its authority in establishing the rule that only one person at a time can undergo training in a barber or beauty shop under a regularly licensed barber or beautician?
These questions will be discussed in their numerical order. (1) The criteria which must be mEot by every person desiring to be licensed in this State to follow the occupation of barbering or hairdressing is set forth in Code Section 84-409 of the Georgia Code of 1933. The portion of this Section pertinent to the question asked is as follows: "Any person desiring to obtain a certificate of registration under the terms of this Chapter, shall make application through the Joint-Secretary, State Examining Boards to the State Board of Barber Examiners therefor, shall satisfy said Board that he is fne from infectious and contagious diseases, and shall pay to said Secretary an examination fee of $15, and shall present himself at the next meeting of said Board held for examination of applicants; and if upon such examination it shall be made to appear that said applicant is above 18 years of age, of good moral character, is free from contagious and infectious diseases, and has practiced or studied the occupation of a barber, and is possessed of the requisite skill in said occupation to properly perform all the duties of the occupation, including his or her ability in the ,Preparation of tools, in shaving, in hair-cutting, and in all the duties and services incident thereto, a certificate of registration shall be issued to him entitling him to practice the occupation of a barber." From the foregoing it is seen that there is no limitation nor requirement as to training or education whatever placed by law as a condition precedent to a citizen's applying for the required examination. In fact, the Statute speci-

481
fically requires as a priority qualification to undergoing the examination only two things, neither of which have to do with training or education. Th>se requisites are:
(1) That the seeker of a license shall satisfy the Board that he is free from infectious and contagious diseases, and
(2) He shall pay an >xamination fee of $15, to the Joint-Secretary, State Examining Boards.
It is elemental in the field of Administrative Law that the administrative agency must operate within the confines of the Statute creating its powers. If the agency goes outside the Statute in its rule making, it is in effect "legis lating", and this it may not do. By the Constitution of the State of Georgia of 1877, Article 3, Section 1, Paragraph 1, the legislative power of the State is vested in the G>neral Assembly. This provision has been adopted in toto in the Constitution of 1945 and is found therein in Article 3, Section 1, Paragraph 1. The legislative authority is non delegable and must be exercised only and exclusively by the General Assembly. An administrative agency, created by an Act of the General Assembly, has only such powHs as are expressly or by necessary implication conferred upon it. See Bentley v. State Board of Medical Examiners of Georgia, 152 Ga. 836.
While it is a fundamental concept of our system of government that the rights of citizens are to be determined by the law itself and not by the discretion or will of individuals or administrative boards, nevertheless where the legislature states the purpose of a law and prescribes standards and limits within which individual or other administrative discretion may be exercised, such a law is valid and the discretion exercised thereunder permissive. But evE;n the legislature may not delegate, unbridled, its legislative authority without running afoul of Constitutional prohibitions. Thus, all the more, where an administrative board is created and its sphere of power is completely set and determined by the legislative body, it is unlawful for such board to assume for itself the legislative function and prescribe rules unauthorized by the Statute. It is my opinion that this is what the Board of Barber and Hairdresser Ex- aminHs has done in setting up rule (1) as outlined above. This rule, being
illegal, should be withdrawn. (2) The pHtinent Statute relating to the second question you have posed
has been codified as Code Sections 84-410 and 84-411. The following extracts from these Code Sections govern:
Section 84-410 "Nothing in this Chapter shall prohibit any person not under the age of 16 years from learning said occupation under a barber authorized to practice under this Chapter who is pursuing his vocation in a barber shop, or under an instructor in a barber school or college who himself has been a journeyman barber for a period of at least thrE;e years and has registered under this Chapter. Every such person desiring to so learn said occupation shall file with the Joint-Secretary, State Examining Boards, a statement in writing showing his name, the place of his employer or instructor, and shall pay to said Secretary a fee of $3, and said applicant shall receive a certificate of registration showing the capacity in which he is permitted to practice said occupation."
Section 84-411 "All barber schools or colleges shall have not less than one instructor for evHy 20 students or a fraction thereof, and all barber schools or colleges shall

482
keep pennanently displayed a sign 'Barber School' or 'Barber College'; Provided, that all barbers, barber schools or colleges, who shall take an apprentice or student, shall file immediately with the State Board of Barber Examiners through the Joint-Secretary, State Examining Boards, the name and age of such apprentice or student, and the said Board shall cause the same to be entered on a register ke:pt by such Secretary for that purpose: - - "
It is to be observed that the Code is explicit in saying that nothing in Chapter 84-4 shall prohibit any person from learning the occupation of barbering, as defined in Code Section 84-401, under a regularly licensed barber engaged in following the calling, provided, of course, the learnee is of the age indicated, has filed a statement in writing as required with the Joint-Secretary, State Examining Boards, has paid the: stated fee, and has met the other requirements set out in the Chapter.
It has been said that the word "any," as used in Statutes, is equivalent to and has the force of the words "every" or "all". See Roedler v. Vandalia Bus Lines, 281 Ill. App. 520.
In Webster's New International Dictionary the word "anybody" (which is synonymous with "any person" as used in the Code Section now being construed) is defined as meaning "any person; anyone; any person out of an indefinite number."
Accepting then, as I do, the cited definitions of the word "any" or "any person" and applying the: same to the s.tatement found in Code Section 84-410, in substance to the effect that any person meeting certain requirements may learn the barbering occupation under a regularly licensed barber active in the work, it clearly seems that it was the purpose of the Statute to deny to no such qualified person the right to study and learn barbering under a duly qualified barber. The Statute does not merely refrain from denying such training in order to cre:ate a privilege; it goes further and creates for such qualified persons the "right" to so learn. The law having created the right, it may not be denied by the administrative Board. Further, it is obvious that the Code does not limit the number who may train in any one barber shop; neither is there any discretion endowed upon the Board to place such restrictions. By no intelligible construction can such a discretion in the Board be presumed. Nowhere in the Act does it appear as a purpose: the limiting in numbers of those who may follow the occupation. The purpose presented by the Act to the Board is not to keep the occupation small as to numbers engaging in it, but rather it is to enforce standards in the interest of the general health and welfare of the public.
It is therefore my opinion that question (2) must be answered, "Yes, the Board has exceeded its lawful authority in promulgating such a rule." I wish to point out that this opinion doe:s not go so far as to establish a point wher.e learning under a private barber ends and the running of a barber school or college begins, but it is limited precisely to answering the question posed.

483

PROFESSIONS, BUSINESSES AND TRADES-Businesses A veterans certificate of exemption may not be revoked for conviction of selling alcoholic or malt beverages without a license.

Hon. M. E. Thompson, State Revenue Commissioner.

March 14, 1946

This will acknowledge yours of the 13th instant requE:sting an opmwn as to your authority to revoke a certificate of exemption issued to a veteran of World War II under the authority of Code Section 64-2011, as amended by the Act of 1935 (Ga. L. 1935, p. 163), and the Act of 1943, (Ga. L. 1943, p. 617), where it appears that the veteran to whom the cE:rtificate was issued had been convicted of selling corn whiskey and beer without a license in the city of Savannah.
The Veterans Exemption Act, as amended by the Act of 1935, provides:

"The State Revenue Commission may cancel or suspend certificates of exemption at any time when it shall sufficiently appear that the holder has be:ome physically or financially ineligible to claim the exemption; that the certificate of exemption was procured through fraud or mistake, or that the person to whom said certificate was issued has permitted another to enjoy the benefits of such exemption."
See Section 84-2016, Ga. Code Annotated. The Act of 1943 provides in part:

"Any veteran recE:iving a certificate of exemption from the State Revenue' Commissioner shall not allow the use of his name or the use of his certificate by any other person for carrying on any business or profession in this State for the purpose of avoiding any tax levied by the State or any county or municipality in this State, and any veteran allowing his certificate of exemption to be used in violation of this provision shall be subject to have his certificate cancelled by thE:' State Revenue Commissioner."

See Section 84-2020, Ga. Code Annotated.

A careful study of the provisions of the Veterans Exemption Acts in question reveals that the above quoted provisions are the only ones relating to the power of the State Revenue Commissioner with referE:nce to cancellation or suspension of certificates of exemption. It will be observed that there are only four grounds upon which a certificate of exemption may be revoked by

the State Revenue Commissioner, to wit: (1). If the holdE:r of the certificate becomes physically ineligible to claim

the exemption; (2). If he "becomes financially ineligible to claim the exemption; (3). If the certificate was procured through fraud or mistake; and (4). If the holder of the certificate has permitted another to enjoy thE:'
benefits of such exemption, or allowed the use of his name or the use of his certificate by any other person for carrying on any business or profession in this State for the purpose of avoiding any tax levied by the State or any county or

municipality in this State. No power is vested in the State Revenue Commissioner to revoke a certifi-
cate upon the ground that the holdE:r has been convicted of selling corn whiskey or beer without a license. Therefore, I am of the opinion that you do not have the authority to revoke, suspend or cancel a certificate of exemption upon the

484
ground-that the holder thereof has been convicted of selling spiritous, alcoholic or malt beverages without a license.
PROFESSIONS, BUSINESSES AND TRADES-Businesses A vE:teran's certificate of exemption does not apply to the regulatory fee imposed on wholesale fish dealers.
March 29, 1946 Ron. Tom Linder Commissioner of Agriculture
I am pleased to acknowledge your letter of March 13th, in which you ask for an opinion as to whether a veteran's license would relieve the holder of payment of the $50.00 license required of wholesale fish dealers.
When Governor Arnall was Attorney General, hE: rendered the following unofficial opinion to Ron. Curtis L. Middleton under date of July 15, 1939. (P. 469, Opinions of the Attorney General, 1939-1941) For conveniE:nce, I quote the following from his letter: "Ron. Curtis L. Middleton Blakely, Georgia
"This will acknowledge yours of the 8th instant requE:sting information as to whether a veteran of the World War who holds a certificate of exemption for the year 1939 would be liable for the $50.00 license as a wholesale fish dealer inspection tax. Your letter would have received more prompt attention, but for the fact that this office has been literally snowE:d under for the past two or three weeks due to certain important cases being handled in the Supreme Court and lower courts.
"Our courts have held that a person holding a certificate of exemption issued in accordance with the terms of the Veterans' License Act is not exempt from the payment of any regulatory fee, but only from license fees or taxes imposed 'for conducting a businE:ss or peddling'. See McKinney v. Patton, 176 Ga. 719; Snipes v. Flournoy, 178 Ga. 815.
"The annual license fee of $50.00 levied upon wholesale fish dealers is, in its nature, a regulatory fee, in that the revenue derived from the collection of such fees is used, not for the general support of the Government, but for the enforcement of sanitary rules and regulations in reference to the distribution and transportation of fish and sea food."
Since the license fee required under Chapter 42-11 of the Amended Code is in its nature a regulatory fee, tile same being "allocated to Department of Agriculture for the purpose of administering this Chapter" (Section 42-1110) I am of the opinion that thE: letter written by my predecessor as above set forth, correctly states the law on this subject.

485

PROFESSIONS, BUSINESSES AND TRADES-Businesses Honorably discharged veterans of World War II are exempt from State business licenses for a period of five years without regard to liability for State income taxes.

Hon. J. G. Rockmore, Director Veterans License Unit State Department of Revenue

August 15, 1947

At your request, a membtr of the staff of the Law Department collaborated with you in the preparation of the attached administrative construction of th:e Veterans License Tax Exemption Law. The Act of the General Assembly of 1947, pages 1163-5, has been called to my attention by a request for an unofficial opinion, and after a thorough study of this Act I cannot concur in the administrative construction that an honorably discharged veteran of the armed services who servE:d in World War II between December 7, 1941 and March 27, 1947 is required to make an affidavit that he is not subject to State income taxes.
Section 3 of the Act of 1947 (Ga. L. 1947, pp. 1164-65) provides as follows: "All honorably discharged veterans of the armed services who served in World War II between December 7, 1941 and the passage of this Act shall be exempt from State business licensE:s for a period of five years from the passage of this Act." While there may be some question as to the constitutionality of this Act due to the fact that the provisions contained in the body of the Act may not be sufficiently covered in the caption, nevtrtheless, it is the general rule that a law is presumed to be constitutional until so declared otherwise by the

courts of our State. The first rule for the interpretation of a statute is to seek diligently the

intention of the legislature as manifested in its terms. After consideration of the Act of 1947 (Ga. L. 1947, pp. 1164-65) I have
come to the conclusion that the Gentral Assembly, by the passage of said Act, intended to amend the license exemption laws by reducing the percentage of disability under Code Section 84-2012 from twenty-five per cent (25 o/o) to ten per cent (10%) and extend the license exemptions to cover professions and

semi-professions, and at the same time grant a moratorium to all honorably discharged veterans of World War II specified in said Section 3 from State business licE:nses for a period of five years from the passage of the Act without said veterans making any affidavit that he or she is not liable for the payment of

State income taxes. I have reached the further conclusion that the effective date of said morato-
rium or period of five years would begin on March 27, 1947 and terminate on

March 27, 1952. I am bolstered in reaching the above stated conclusion in regard to the Act
of 1947 in that the General Assembly has seen fit over a period of years to make concessions in different ways to different groups of veterans and nonveterans in exempting them from certain license taxes. The license exemption laws of our State at present affect various classes of veterans in a number of different ways. It grants to one group of veterans certain license exemptions when they have a ten per cent (10%) disability due to service during certain War periods., It grants to another group of veterans certain license exemptions

486
whbn they have one hundred per cent (100'/c) disability. It grants to another group of veterans certain license exemptions without any disability. It also allows infirm and indigent blind persons without military service certain license exemptions.
It is most reasonable to assume, therefore, that in enacting the clear exemption language contained in paragraph three of said Act of 1947 the General Assembly dbsired to give to the honorably discharged veterans of World War II a five year moratorium or period of exemption as a token of appreciation of their services rendered their country during World War II, and at the same time keep on the statute books the amended provisions of Sections 84-200184-2018, that will apply to these exempted World War II veterans after thE: five year period.

PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) There is no limit on the number of employees a veteran may have under a certificate of exemption.

November 12, 1947

Ron. J. Brantley Edwards

City Attorney

Cedartown, Georgia

This will acknowledge your letter of November 6, in which you request

an opinion as to the following quE:stions:

" ( 1) How many persons may a veteran employ in his business without be-

ing subject to payment of a municipal license tax, the veteran being the holder

of a Veteran's Certificate of Exemption properly issued?

(2) How many places of business may a veteran conduct without pay-

ment of a municipal license tax, the veteran being the holder of a Veteran's

Certificate of Exemption propE:rly issued?"

Relative to question one, you will note that the General Tax Act of 1935

prohibited a veteran from obtaining an exemption where the veteran employed

more than one person to assist him in conducting his business. However, the

General Assembly in 1939, (Ga. L. 1939, p. 97), amended the Act of 1935,

Section 1 of the Act of 1939 being as follows:



"Section 1. That Section 22 of the General Tax Act No. 360, approved

March 28, 1935, Georgia Laws of 1935 be and the same is hereby amended by

striking from said Section the second sentence thereof which provides as follows:

'No person shall be exempt from any tax imposed who has more than one

E:mployee to assist in conducting such business,' so that the Section so amended

shall read as follows:

"Section 22. Be it further enacted that any person engaged in any occu-

pation taxed by this Act who claims to be exempt from the payment of the

taxes herein imposed, by virtue of the provisions of this Act or any other Act

of this State, must first satisfy the State Revenue Commission that he is entitled

to the exemptions claimE:d, and obtain from it a certificate of exemption before

he shall be entitled to any exemption from any tax imposed by this Act. The

holder of such a certificate of exemption shall not be excused thereby from

registering with the Ordinary of each county wherein he does business or with

the Comptroller-General as requirE:d by this Act, but on registering he shall

exhibit said certificate of exemption to the ordinary or the Comptroller-General.

487

Any person who shall endeavor to escape the taxes imposed by this Act by virtue of a certificate or exemption obtained through fraud or by using a certificate of exemption to which he is not entitlE:od shall be guilty of a misdemeanor, and on conviction shall be punished as prescribed in Section 27-2506 of the Code of 1933."
The effect of this amendment was to strike from the General Tax Act the limitation as to one employee. The Supreme Court of our State in the case of Head v. Wilkinson, 186 Ga. 739, deals exhaustively with the question of veterans exemption. There appears to be no limit to the number of persons that may be employed by a veteran holding a certificate of exemption, to conduct a business.
It is a question of fact whether or not a person is an employE:oe of a veteran.
In regard to your second question, I am forwarding you a copy of an opinion dated February 19, 1945 by the then Attorney General, Honorable T. Grady Head, now an Associate Justice of the SupremE: Court of Georgia, which is being followed by the State Department of Revenue, which covers fully question two.

PROFESSIONS, BUSINESSES AND TRADES-Chiropractors

An applicant for examination and licensE: to practice chiropractic must be

a graduate of a chartered chiropractic school or college which requires

a four-year course of nine months each. Hon. R. C. Coleman, Joint Secretary

March 18, 1946

State Examining Boards

This will acknowledge your letter of March 15, with a letter attached from

Honorable E. H. Anderson, D. C., asking an opinion from the Attorney Gen-

eral relating to the educational requirements of an applicant for examination

and a license to practice chiropractic in this State.

The law, under Section 84-507 of the Code of 1933, Annotated Pocket

Part, providE:s in part as follows:

"Each applicant shall be of good moral character, and shall be a graduate

of a chartered chiropractic school or college which teaches only attendance

courses and requires a four year standard college course. .." (Emphasis

supplied).

May I call your attention to an opinion by Hon. Marshall Allison, then As-

sistant Attorney General, which you will find in the published Opinions of the

Attorney General, 1939-41, page A-30, construing the words "four years stan-

dard college course," as used in the amendment approved March 23, 1939 (Ga.

L. 1939, pp. 252-253), amending an Act entit!E:d "An Act to Authorize and

Regulate the Practice of Chiropractic in the State <'f Georgia, etc," in which

he said: ''It is very clear from the caption or the title that the intention of the

Legislature was to prescribe a four year standard college course, to be four

years of nine months each." Hon. Ellis Arnall, while Attorney General, rendered an opinion which is

also published in said "Opinions" on Page 442 thereof, in which he stated:

"I believe Mr. Allison's opinion correctly interprets the educational re-

quirements as contained in the Amendment of 1939, pertaining to the four

years standard course."

488
Under the law, as shown by the construction placed on it by one of the State's former Assistant Attorneys General and concurred in by the Attorney GEneral, it is my opinion that a graduate from any school which does not require a four year course of nine months each for graduation would not meet the requirements of law as an applicant for examination and a license to practice chiropractic in Georgia.

PROFESSIONS, BUSINESSES AND TRADES-Chiropractors

A licensed chiropractor in Georgia is not authorized to use colonic irriga-

tions, Electrical treatments (except X-ray) and vitamins in the treatment of

patients.



SeptembEr 18, 1947

Hon. R. C. Coleman, Joint Secretary

State Examining Boards.

I have your letter of September 15th, in which you request my opinion

on whether or not chiropractors are authorized under the law to use Colonic

Irrigations, Electrical treatments (except X-ray) and vitamins.

On March 12, 1941, Hon. Ellis G. Arnall, then Attorney General, rendered

an official opinion to Hon. E. H. Anderson, then President, Georgia State Board

of Chiropractic Examiners, on the specific question which you have asked. I,

therefore, refer you to the opinion of Hon. Ellis Arnall as published in the

Opinions of the Attorney General 1941-1943, page 153-157. The referred to

opinion held:

"It is my opinion, therefore, that a person holding a chiropractic license

in Georgia is not authorized to use electricity (except electricity X-ray photog-

raphy) colonic irrigation, sweat baths, or any therapEutic means other than

his hands."



I have found no reason or authority for changing or modifying the opinion

of the former Attorney General in any respect.

The specific question as to the use by chiropractors of vitamins is not an-

swered in the above referred to opinion. However, on August 7, 1939, Mr.

Arnall rendered another opinion in which he stated:

" .... it is plainly written in the statute relating to the licensing of chi-

ropractors and defining the scope of practice of such licensees, that 'chiroprac-

tors shall not prescribe or administer medicine to patients, perform surgery nor

practice obstetrics or osteopathy.' Code Section 84-509. Furthermore, chiro-

practic is defined as follows: 'The term chiropractic as used in this Chapter

means the adjustment of the articulation of the human body, including ilium,

sacrum and coccyx, and in the use of electricity X-ray photography, but the

X-ray shall not be used for therapeutical purposes.' Obviously, this definition

is not broad enough to include the administering or prescribing of drugs.''

The above opinion was reaffirmed on March 9th, 1943, by the Hon. T.

Grady Head, who was at that time Attorney General.

It will be seen from the referred to opinion of Hon. Ellis Arnall dated

March 12, 1941 and the above quotation that the Georgia law does not authorize

the use of colonic irrigations, electrical treatments (except X-ray) and vitamins

for persons licens~:od to practice chiropractory.

489

PROFESSIONS, BUSINESSES AND TRADES-Dentists (Unofficial) (1) A call meeting of the Board of Dental Examiners of Georgia held without the notice required by statute is legal if all of the members attend and no rights of other persons are affected. (2) A license to practice dentistry may be granted without examination to a licentiate of another State who is found to bo of good moral character.

Dr. G. C. Hunter, Member

December 18, 1945

Board of Dental Examiners

Your letter of December 8th, addressed to Hon. Grady Head, has been re-

ferred to me for answer.

You rofer to Section 84-705 of the Code of 1933 and request that I advise

whether or not a call meeting of the Board would be legal where fifteen days

notice is not given in writing as provided for in said Section. This Section makes

it the duty of the Board to meet in call meetings ordered by three members

of the Board or by its President where fifteen days notice in writing is given.

Should all of the members of the Board convene in a call meeting after notice,

even though the notice be not for the period of fifteen days, and transact any

business coming before the Board, where the failure to give fifteen days notice

did not involve the right of any third porson, it is my opinion that the meeting

would be legal and any business transacted in such a meeting would be in

order.

You refer to Section 84-710 of the Code and request that I give my con-

struction rogarding the licensing of any one to practice dentistry without an

examination.

This Section of the Code authorizes the Board to license any one to prac-

tice dentistry without an examination where such person is found to be of

good moral character and who has been regularly licensed and authorized

by the laws of any other State to practice dentistry. The admittance of such

a person to practice dentistry in Georgia would be under rules and regulations

and based upon conditions prescribed by the Board. This Section also author-

izes the State Board, in its discretion, to enter into agreements with other

Statos whereby such States will admit those licensed by either of the contract-

ing States. Under our law it is not necessary for the Georgia Board to enter into such a contract of comity with any 1State to enable the Georgia Board

to license a person to practice dentistry where such person is of good moral

character and is duly authorized to practice detttistry by another State.

PROFESSIONS, BUSINESSES AND TRADES-Dentists (Unofficial) A person appointed by the Governor to the Georgia State Board of Dontal Examiners ceases to hold office when the next session of the General Assembly adjourns sine die without the Senate having confirmed the ap-

pointment.

April 16, .1947

Ron. R. F. Sullivan Savannah, Georgia
Your letter of April 14th received. You request a ruling as to your status
with the Georgia State Board of Dontal Examiners. You state that Gcvernor Arnall appointed you to the Board last August,

490
that you were sworn in and received your commJSSJon, but that ~;our appointment was not confirmed by the Senate. You request that I advise whether or not you are now a member of the Board.
Section 40-314 of thE> Cumulative Pocket Part of the Annotated Code (Ga. L. 1943, pp. 208-209) provides as follows:
"All appointments made by the Governor to boards, commissions and bureaus created and established by the laws of this State, shall be made subject to confirmation by the State Senate. And it shall be the duty of the Governor to submit to the Senate the names of all such appointeE:s appointed prior to the convening of the General Assembly or during the session, either regular or special, of the General Assembly, and unless such appointees are confirn1ed by the Senate, they shall cease to hold the office to which they have been appointed, and the namE> of another appointee shall be immediately submitted by the Governor to the Senate to fill such office."
Under the Section of the Code as I construe it, your term of office ended when the General Assembly adjourns sine die without having confirmed your appointment. This Section requires that all appointments made b~ thE: Governor to boards shall be made subject to confirmation by the State Senate. It also provides that unless such appointees are confirmed by the Senate they shall cease to hold the office to which they have been appointed. See Kaigler v. Floyd, 187 Ga. 441.
PROFESSIONS, BUSINESSES AND TRADES-Embalmers Upon discontinuance of the statutory rating authority, the Georgia State Board of Embalmers may determine the schools from which an applicant for a license must graduate.
November 13, 1946 Hon. J. D. Wallis, President Georgia State Board of Embalmers
In response to your request for my opinion in regard to the requirements for issuing licenses to embalmers, under Section 84-811 of the Code of Georgia, I beg to advise that under said Section, all applicants shall have a certificate of graduation from an embalming school having a course of not less than six months whose accredited rating is not less than Grade A as required by the ConfErence of Embalming, and Examining Board of the U.S.A., Incorporated.
I understand from your letter that the above named rating board has been discontinued, but that a new rating bureau known as the Conference of Funeral Services Examining Boards is now in existence.
I wish to say that there is nothing set out in Section 84-811 of thE: Code which provides for a successor board to the Conference of Embalming and Examining Boards. Therefore, after consideration, I am of the opinion that this portion of the above Section of the Code is inoperative and of no effect, and that the State Board of Embalmers is not bound by the new rating bureau.
I am of the further opinion that it is E:ntirely within the discretion of the Georgia State Board of Embalmers to determine what embalming schools or colleges, if any, applicants would be required to obtain certificates of graduation therefrom.

491

PROFESSIONS, BUSINESSES AND TRADES-Engineers The State Board for Registration of Professional Engineers may not contribute to the Engineers Council for Professional DevelopmE;nt.

Ron. R. C. Coleman, Joint Secretary

September 13, 1945

State Examining Boards

You handed me a letter from H. T. Person, President, National Council of

State Boards of Engineering Examiners, which requested thE; State Engineers

Board to make a contribution to the Engineers' Council for Professional De-
velopment; and requested that I advise whether, under the Georgia law, thE;

State Board of Engineers could make such a contribution.

Under Section 13 of the 1945 Act creating the State Board, it is provided

that the secretary of the Board shall receivE; and account for all monies derived

under the provisions of the Act, and shall pay the same monthly to the State

Treasury. The Board operates under the General Appropriations Act. Para-

graph 1, Section 2, of Article 7 of the Constitution of 1945, sets forth the

specific objects for which the State may levy taxE;s. In general, the State may

levy tax under authority from the General Assembly for the support of the

State Government; for educational purposes; to pay the public debt; to sup-

press insurrection, to repel invasion and defend the State in time of war; to

make provision for the payment of pensions to Confederate solditrs and their

widows; to construct State buildings, State highways, airports and docks; to

make provision for social security benefits; to advertise and promote the agri-

cultural, industrial and natural resources of the State; and for public health

purposes.

Paragraph 4, Section 3, of Article 7 of thE; Constitution of 1945, provides:

"The credit of the State shall not be pledged or loaned to any individual,

company, corporation or association and the State shall not become a joint

owner or stockholder in, or with, any individual, company, .association or

corporation."

It is my opinion that the making of a donation by the State Board to the

Engineers' Council for Professional Development would be an illegal and un-

warranted expenditure of State funds.

PROFESSIONS, BUSINESSES AND TRADES-Medi\;al Practitioners The State Board of Mtdical Examiners may not withhold the license of an applicant who has passed the examination until he completes one year
of internship.
March 29, 1946
Ron. R. C. Coleman, Joint Secretary State Examining Boards
Dr. Coker and Dr. Wheat, members of the Medi.cal Board, came by my office in person and requested that I give them my opinion as to the legality of the Board adopting a rule which would permit graduates of recognized medical collegE;s to take examinations before the Board, and that the license be withheld until the applicant had had one year's internship in some hospital.
The question presented is one not wholly free from doubt. Under Chapter 84-9 of the CodE; of 1933 any person wishing to obtain the right to practice

492
medicine in this State is required to make application to the State Board of Medical Examiners. The applicants are required to furnish proof of their graduation from a recognized college of medicine. The furnishing of this proof authorizes the Board to grant unto such applicants the: right to take an examination for the purpose of determining the qualifications of the applicant.
Sections 84-910 and 84-911 of the Code prescribes college courses and required study of the different subjects in the medical school. Section 84-913 outlines the subjects on which the members of the Board must examine the applicant.
Section 84-915 of the Code provides in part as follows: "Said Board shall issue licenses to practice medicine to all persons who shall furnish satisfactory evidence of attainments and qualifications under the provisions of this Chapter and the rules and regulations of the Board." Section 84-905 of the Code provides in part as follows: "The Board shall, from time to time, adopt such rules and regulations as they may deem necessary for the performance of their duties, and shall examine and pass upon the qualifications of the applicants for the practice of medicine, as herein provided." The General Assembly of the State is, under our Constitution, the lawmaking power of the State. This power cannot usually be delegated to any other authority or board. Accordingly, the general rule is that arbitrary power to grant or withhold license cannot be conferred upon a board or official.
It is also a generally accepted rule that license legislation which vests in public officials discretion to grant or refuse a license to carry on an ordinarily lawful business, profession, or activity without prescribing definite rule:s and conditions for the guidance of the officials in the execution of their discretionary power is invalid. See 33 Am. Jur. 377, Sec. 60.
In some instances the grant of reasonable discretion is allowable. Some situations require the vesting of some discretion in boards, as for instance, where: it is difficult or impracticable to lay down a definite, comprehensive rule, or the discretion relates to the administration of licensing requirements as police regulations and is necessary to protect the public morals, health, safety, and general welfare of the people. 33 Am. Jur., supra.
Construing the Medical Act of this State as a whole, seeking the intentions of the General Assembly, and under the rules referred to, it would seem that it was the intention of the General Assembly that all persons who meet the requirements of the Medical Act and furnished satisfactory proof of the attainments and qualifications prescribed by the Act should be given a license to practice medicine when applied for.
Taking alone the provisions quoted from Section 84-915 it would seem ample authority to confer upon the Board the power to adopt such a rule as proposed by Dr. Coker and Dr. Wheat. Under that provision the: Board shall issue license where the applicant has furnished satisfactory evidence of attainments and qualifications under the provisions of the Medical Act and the rules and regulations of the B'oard.
While I think that under this provision of Section 84-915 the Board could adopt such a rule, it is quite doubtful that the court would uphold this theory, due to the fact that the court would no doubt construe the provision together with the entire Act under the rules of law to which I have called your attention.
It would, therefore, be my advice that the Board refrain from &xercising

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this power and authority, and that they appeal to the General Assembly to amend the Medical Act and include the requirement of one year internship in some hospital before the issuance of a license.
No doubt the requirement is one that should be established for the protection of the health, safety and welfare of the people of the State, and I believe the Board would have no trouble in securing the passage of an act by the General Assembly setting up this requirement.

PROFESSIONS, BUSINESSES AND TRADES-Ministers (Unofficial) No state license or registration is required of ministers.

Mr. H. Haynes Bey,

December 10, 1945

36 Quincy Street, Brooklyn 5, New York

Permit me to acknowledge your letter of December 8, inquiring as to the registration of ministers of religion in Georgia.
Georgia has no law requiring the registration or licensing of ministers. The ordination of ministers, and their authority to perform baptism or other rites of their respective churches, are matters solely under the jurisdiction of the specific religious organization. The Constitution of Georgia of 1945 contains the following provisions:
"Article I, Paragraph XII. Freedom of conscience. All men have the natural and inalienable right to worship God, each according to the dictates of his own conscience, and no human authority should, in any case, control or

interfere with such right of conscience. "Article I, Paragraph XIII. Religious opinions; liberty of conscience. No
inhabitant of this State shall be molested in person or property, or prohibited from holding any public office, or trust, on account of his religious opinions; but the right of liberty of conscience shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and

safety of the State." Code Section 108-205 of the Georgia Code of 1933 defines what shall be

deemed not religious in character, as follows: "Nothing shall be deemed religious in its character which affirms doctrines
licentious in their tendency or inconsistent with the peace and safety of the

State." There are certain requirements made of ministers who may perform mar-
riage ceremonies, and these are set out in Chapter 53-2 of Title 53 of the Georgia Code. These sections provide that the marriage lic:nse issued by the proper official of the State shall be directed to any judge, justice of the peace,

"or minister of the gospel, authorizing the marriage of the persons therein named, and requiring such judge, justice of the peace, or minister of the gospel to r:turn the said license to the ordinary, with his certificate thereon as to the fact and date of the marriage, within 30 days after the date of said marriage, which license, with the return thereon," shall be recorded by the

Ordinary. Other sections in this Chapter, dealing with marriages performE;d by min-

isters, are as follows:

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''53-209. If any judge, Justice of the peace, or minister shall join in marriage persons whose banns have been published, such judge, justice of the peace, or minister shall certify the fact to the ordinary of thE county where such banns were published, which ordinary shall record the same in the same book with marriage licenses.
"53-210. Penalty on person officiating.-Any judge, justice of the peace, or minister who shall join in marriage any couple without a license, or the publication of banns, shall forfeit the sum of $500....
"53-211. Upon request, the ordinary may direct the marriage license to any JEwish minister or other person of any religious society or sect authorized by the rules of such society to perform the marriage ceremony, who shall make return thereon as before required.
"53-212. Ordained colored ministers of the gospel may celebrate marriages between persons of African descent only, under the same terms and regulations required by the law for marriages between white persons.
"53-213. A marriage valid in other respects, and supposed by the parties to be valid, shall not be affected by want of authority in the minister or justice of the peace to. solemnize the same; nor shall such objection be heard from one party who has fraudulently induced the other to believe that the marriage was legal."
The State of Georgia goes far to uphold religious liberty, and even its Courts are n;luctant to interfere in the internal affairs of any religious organization, society or sect.
PROFESSIONS, BUSINESSES AND TRADES-Nurses The Board of Examiners of Nurses for Georgia may not grant advanced credit in excess of 12 months to student nurses for work in an institution other than the one from which graduation ensued.
October 20, 1947 Miss Mabel Korsell, R.N. Educational Supervisor Board of Examiners of Nurses for Georgia
This will acknowledge your letter of recent date making inquiry as to whether the Board of Examiners of Nurses for Georgia may grant advanced credit in excess of twelve (12) months to student nurses where such period and excess were earned in an institution other than the one from which graduation ensued.
It is assumed in rendering this opinion that the credit earned and being considered was awarded by a regular chartered training school for nurses or from a training school connected with a hospital in good standing meeting all of the requirements for approval as may be demanded by law and the regulations of the Board. It is further assumed that you refer to those students or nurses who are seeking, or who are expected to seek, registration as graduat: nurses.
The answer to your inquiry is found in Code Section 84-1008 of the Georgia Code of 1933, Annotated. The entire Section reads as follows:
"Each applicant for registration as a graduate nurse shall be at least 21 years of age, of good moral character, a graduate of a regular chartered training school for nurses, connected with a genera.! hospital or sanatorium (in

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which medical, surgical, obstetrical, and pediatric cases, and where men, women, and children, are treated) where three years of training with a systematic course of instruction on the above-mentioned classes of cases is given in the hospital or other educational institution, or shall have graduatE>d from a training school connected with a hospital of good standing, supplying a three years' training corresponding to the above standard, which training may be obtained in two or more hospitals. All qualifications of the applicant shall be determined by the State Board of Examiners of Nurses for Georgia, which is empowered to prescribe such examinations for the applicants as will best test their fitness and ability to give efficiE>nt care to the sick. All applicants at the same examination shall be subject to the same kind of examination: Provided, that the Board of Examiners shall have the power to grant advanced credit, not in any case in excess of 12 months, for didactic and laboratory work done in an accredited college, or for credits, either time or scholastic, earned in an institution other than the one from which graduated."
It should be observed that the cited Code Section is definitive of the nE>cessary qualifications to be met by applicants for registration as graduate nurses; that it empowers the Board to prescribe examinations for qualified applicants on a non-discriminatory basis; and that it specifically precludes the Board from granting advanced credit in excess of twelve (12) months earned in an institution other than the one from which graduated.
The Code Section must be read as a whole. When this is done, it is readily seen that the limitation placed upon granting credits earned in an institution foreign to the one from which graduated applies as a restriction, not to the credit rE>quired for graduation as a nurse from an institution, but rather to the qualifications to be met by the applicants before the Board may present an examination to them. Thus, it is quite possible for a nurse to have been graduated from an approved institution in accordance with the rules of the latter, and yet fail as to the qualifications required by law because of having been allowed credit from another institution in excess of twelve (12) months. ThE> institutions may do this insofar as the law is concerned; but the Board may not, and it is the Board which is charged by law with the duty of passing upon the qualifications of applicants.
In accordance with the views expressed in this opinion, the answer to your question, as to whether the Board may grant advanced credit in excess of twelve (12) months to student nurses where such period and excess were earned in an institution other than the one from which graduation ensued, must be in the negative.
PROFESSIONS, BUSINESSES AND TRADES-Optometrists Fitting contact lenses is the practice of optometry.
November 18, 1946
Hon. W. R. Wilson, Sr., President Georgia Board of Examiners in Optometry
Your letter of November 15th received. You refer to my letter of November 12th wherein I called for additional information regarding the practice of fitting contact eyes. You state that this practice is carried on by fitting eyes with a segment of glasses; glass, plastic or other transparent material in t~e form of a thin shell or segment that caps over the front of the eye-ball and Is

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held to thE: eye by the lids without the use of spectacles and spectacle lenses. You state that this practice was not known at the time of the passage of the Optometry Act and rE:quest that I advise whether or not Section 84-1101 would apply to such practice.
Section 84-1101 of the Code provides: "Optometry or the practice thereof is the employment of any means, other than the use of drugs, for the measuremE:nt of the powers of vision and the adaption of lenses for the aid of same." I am of the opinion that the practice mentioned in your letter on November 15th by a person who has not been licensed to practice optometry as provided for in the Optometry Act would under SE:ction 54-9917 of the Code of 1933 be a misdemeanor and the person rendering such practice would be subject to be punished as for a misdemeanor, even though the Code Section was passed prior to the discovery of fitting contact eyes.
PROFESSIONS, BUSINESSES AND TRADES-Optometrists (1) Persons who were oncE> licensed to practice optometry, but who cease the practice and forfeit their certificates for non-payment of registration fees are not entitled to automatic reinstatement upon tendering past due registration fees plus penalties, but may be reinstated under such reasonable rules and regulations as the GE:orgia State Board of Examiners in Optometry may adopt. (2) The Georgia State Board of Examiners in Optometry may require proof that an applicant for renewal of his certificate to practice optometry has been engaged in the active practice within a rE:asonable time prior thereto.
August 7, 1il4'7 Dr. Walter L. Bell, President Georgia State Board of Examiners
Receipt is acknowledged of ;vour letter dated July 22nd, wherein you request an opinion on the two following specific points:
(1) Are persons, who were given certificates to practice optometry without undergoing an examination by reason of the fact that such persons had been practicing optometry for two years prior to the passage of the Act creating the Board of Examiners in Optometry, and who for many years extending back from this date have not paid their current registration fees as they becamE: due and, therefore, have not been engaged in the practice of optometry during these years, entitled as a matter of right to be reinstated to the practice by paying all registration dues plus an additional penalty of five dollars.
(2) May persons once properly licensed to practice optometry and who have renewed their licenses regularly, annually, and properly since, but who, notwithstanding their being licensed to practicE: optometry, have not been engaged in such practice but have engaged in other businesses and occupations, be entitled as a matter of right to receive such licenses after proper application and payment of fees even though a period of twenty years may have elapsed since such pE:rsons were actively engaged in the practice?
At the outset, I desire to make reference to an opinion of the Attorney General dated May 22, 1946 addressed to Hon. W. R. Wilson, Sr., President,

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Georgia State Board of Examiners in Optometry, which was re:ndered upon a similar point. In that opinion it was said that:
"The payment of the fee and the penalty of $5 as prescribed by Code Section 84-1109 has the effect of reinstating the license of an optometrist which was forfeited because of nonpayme:nt of annual dues. I do not think it necessary for the Board to pass upon the reinstatement. I think that it is the duty of the Secretary of the Board to accept the payment of the registration fee and the penalty.
"I am of the further opinion that the Board would not have the right to decline a reinstatement of this kind. Afte:r a person has been examined and found qualified and licensed as provided for in Section 84-1105 of the Code, the Board could only revoke the certificate on the grounds outlined by Section 84-1110 of the Code."
Due, however, to the ultimate importance in our system of government of protecting the health and welfare: of the citizens of the sovereignty, and as the questions posed readily appear at first glance to involve those matters, I am examining the subject anew. Repeatedly, the Supreme Court of Georgia, as well as that of the United States and those of our sister states, have found it necessary and legally corre:ct to reverse former decisions in view of subsequent developments or the discovery of the existence of new and aggravating circumstances. Quite often such reversals are based entirely upon the same existing facts but result merely from an enhancement or change of the reasoning processes of the courts. While re:versals of prior decisions by the courts are the exception rather than the rule, still they do occur when, after a rationalizing treatment of the points involved, it is warranted. Since the courts reverse, the Attorney General of the State should be in no better position and where an opinion already rendered be found to be lacking, that opinion, as are decisions of the court, should be open to reversal. "Would such a reversal be warranted here?" is the question.
The Georgia Code of 1933 in Section 84-1109 states in full as follows: "Annual registration of practitioners; fee.-AII persons practicing optometry shall register annually with the Joint-Secretary', State Examining Boards, and shall pay an annual registration fee of $3 on or before January 10 in each year. Failure to register and pay this fee shall forfeit the certificate of such delinquent, but he may be reinstated by paying all registration dues and an additional penalty of $5. (Acts 1931, pp. 7, 37; 1933, p. 202.)"
It is to be observed that the section quoted refers first to "all persons practicing optometry .." It seems to be clear that every statement made thereafter in the section expressly has to do with persons "practicirw optometry". Persons "practicing optometry" are required by it to register annually with the Joint-Secretary, State Examining Boards, and to pay an annual registration fee of $3. If a person "practicing optometty" does not pay such a fee and register as directed, then that person becomes a delinquent. Yet, even though a person "practicing optometry" be: a delinquent, he may be reinstated by paying all registration dues plus an additional penalty of $5.
It is quite significant to note that the Code Section quoted does not say "All persons who are licensed, or who have been licensed, to practice optometry, etc." It only says "All persons practicing optometry ..." There is quite a distinction between being mere:ly licensed to practice an occupation and the actual engaging in the practice. Obviously, a person once licensed to practice

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optometry and who annually registers and pays his fee, but who nevertheless teaches school or operates a store and who does not engage in the occupation of optometry is not engaged in the practice. One may be licensed and yet not be a practitioner.
To "practice" a calling does not mean the exercise of a calling on the isolated occasion, but its frequent or habitual exercise. State v. Cotner, 87 Kan. 864.
To "practice" a profession is to hold one's self out as following it and engaging in it as one's usual business. Beaver Brock Resort Co. v. Stevens, 76 Colo. 133.
To "practice" is to exercise a calling or profession. It is the application of science or knowlodge to the wants of man. People v. Blue Mountain Joe, 129 Ill. 370.
In analyzing a law authorizing registration of one who had been engaged for two years in the practice of veterinary medicine and surgery, the word "practice" was held not to mean a few isolated acts of treatment but to imply a continuing occupation, and a practitioner of veterinary science was defined as one who habitually held himself out to tho public as such. Sanborn v. Weir, 95 Vt. 1.
Applying the test to Code Section 84-1109 as deducible from the foregoing discussion and citations of authority, it follows that the Code Section under consideration would apply only to persons actively engaged in the practice of optometry; that the phrase "practice of optometry" is distinguishable from that of "licensed to practice optometry"; that by the practice of optometry is meant the frequent or habitual exercising of the calling by one who habitually has held himself out to the public as being a practicing optometrist; that one who is or has been licensed to practice optometry, but who nevertheless and in fact is not now engaged in the practice, or who for a period of years has been licensed but has not practiced, is excluded from the privilege of annually registering and paying the proper fee, or in case of delinquency, from securing a license to practice by payjng back fees plus the penalty prescribed.
It is to be noted that what actually constitutes the "practice of optometry" is a matter of fact in each situation. That fact is determinable by the proper body considtring the question and is not within the province of the Attorney General to express an opinion upon. The foregoing paragraph is to be construed as being merely a legal guide or test to be applied to the existing facts in such case as it arises.
The next point to be considered is the meaning of the verb "may be reinstated" as it is found in the second sentence of Code Section 84-1109. That sentence in full provides that:
"Failure to register and. pay this fee shall forfeit the certificate of such delinquent, but he may be reinstated by paying all registration dues and an additional penalty of $5."
The general understanding of the word "may" is that it connotes permission. It is useful in expressing a contingency or a possibility.
While it is true that where a statute directs the doing of a thing for the sake of justice or the public good, the word "may" is considered synonymous with the word ''shall" and therefore mandatory, Vason v. City of Augusta, 38 Ga. 542, yet it would seem to be a correlary that where it is necessary for the

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sake of that same justice and public good, that the word "may" should be construed as permissive and not mandatory.
The purpose of the Act creating the Board of Examiners in Optometry and regulating and setting up standards for practitioners quite obviously was to protect the interest, health, and welfare of the public by precluding incompetent persons from engaging in thE;' occupation. Georgia State Board of Examiners in Optometry v. Friedman's Jewelers, Incorporated, 183 Ga. 669.
The Board was given authority to admit and to license individuals to practice; the manner for so doing is set forth in Code Section 84-1105. Likewise, the Board is empowered to refuse to issue its certificate and to revoke certificates of registration for those persons, who, after notice and hearing upon charges duly set forth in writing, are found not to be possessed of good moral character, or who commit an act involving moral turpitude, and for other reasons set forth in Code Section 84-1110. These Code SE;ctions clearly place discretionary authority in the Board.
It is important to point out here that the Joint-Secretary of the several Examining Boards is not vested with discretionary authority in granting or refusing to grant licenses undH the statutes regulating the practice of optometry. Such discretion is vested entirely in the Board of Examiners in Optometry. The discretion allowed to the Board is limited by statute and cannot be exercised arbitrarily. As may be seen in Code Section 84-101, the Joint-Secretary is specifically charged with the duty, inter alia, "to issue certificates upon authority of the examining board concerned."
In viE;W of the foregoing, it is, therefore, my opinion that persons who for some years have not practiced or who are not presently practicing optometry and who have not maintained payment of the required registration fees and have, therefore, forfeited their certificates to practice, are not entitled to reinstatement as a matter of right by tendering all past due registration fees plus the prescribed penalty of $5. It is proper and quite within the discretion of the Board to promulgate reasonable rules and regulations concerning the reissuing of licenses to such persons.
It is further my opinion that persons once licensed to practice optometry and who have continued to register and pay the license fee annually and properly since, but who nevertheless have not been engaged in the active practice over the years and who are not now actively engaged in the practice, are not entitled as a matter of right to be issued a practitioners certificatE; annually upon registering and paying the registration fee; that it is quite proper and within the discretion of the Board to fix reasonable rules and regulations requiring proof by the applicant that such applicant is actually engaged in the practice at the time of tendering the application or that tht applicant has been engaged in the active practice within a reasonable time prior thereto.
The opinion of the Attorney General referred to on page one of this letter and dated May 22, 1946 addressed to Hon. W. R. Wilson, Sr., President, Georgia State Board of Examiners in Optomttry, being in direct conflict with the conclusions expressed herein, is hereby expressly overruled.

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PROFESSIONS, BUSINESSES AND TRADES-Optometrists Whether certain types of advertising constitute highly unprofessional conduct warranting the revocation of a license to practice optometry is an administrative question for detennination by the Georgia State Boa:rd of Examiners in Optometry.
August 14, 1947 Dr. Walter L. Bell, President Georgia State Board of Examiners in Optometry
This will acknowledge your letttr of July 22, in which you pose the following question:
"Under Section No. 7 of our law, what would consist of unprofessional advertising?
The Board would like to have a ruling on the following types of advertising: Broad side newspaper; radio; rural box carrier; hand bills; sterers; salesmen, sign boards, etc."
It is presumed that you have re:ference to Section 7 of the Georgia Laws of 1916, page 83, which set up and defined the duties and powers, among other things, of the Board of Optometry. Section 7 of the Act referred to above was expressly repealed by the Optometry Registration and Fee Act of Georgia Laws of 1933, page 202. In place of the Section in the 1916 Act which was repealed, a new Section was added in the 1933 Act. That portion of the 1933 Act has been codifiE:d and is to be found in Section 84-1110 of the Georgia Code of 1933. In the codified Section it is provided, among other things, that the Board of Examiners in Optometry shall refuse to issue its certificate of registration and may revoke its certificate of registration issued to any person who is guilty of highly unprofessional conduct: Provided, however, that written notice was served upon such person accused of the unprofessional conduct and a hearing duly had upon the matte:r.
I presume that it is your desire to classify certain types of advertising as consisting of such unprofessional conduct.
This interrogatory is construable as an administrative prerogative of the Board of Examiners in Optometry. The Office of the Attorney General does not recommend matters of administrative policies to the several boards or departments within the State Government but conctrns itself only with matters pertaining to the laws. Accordingly, I am unable to render you an opinion as to whether the types of advertising listed in your request are such as would constitute unprofessional conduct warranting the revocation of certificates to practice by the Board acting in accordance with the procedure outlined in the Cede.
PROFESSIONS, BUSINESSES AND TRADES-Optome~rists The Georgia State Board of Examiners in Optometry may not require an applicant to reside in the State for six months before he takes the examination or is admitted to practice, but need not grant comity to states imposing such requirements on Georgia lice:ntiates.
August 22, 1947 Dr. Walter L. Bell, President Georgia State Board of Examiners in Optometry
This will acknowledge yeur letter in which you raise the question as to

501
whether or not the State Board of Examiners in Optometry has the authority to require applicants for licens~s to practice optometry to have resided for a period of six months in this State before undergoing the examination or before being admitted to practice.
In considering your inquiry the question of comity must be discussed. The law in this State setting forth the manner in which persons may be admitted to the practice of optometry is found in Code Section 84-1105 of the Georgia Code of 1933. Subdivision (1) of the cited Code Section provides in part as follows: "The applicant shall be registered and given a certificate of registration if he holds a valid license from such other State boards of optom~try as may be, under the rules of comity, recognized by the Georgia State Board of Examiners in Optometry. . . . " Obviously, the portion of the Subdivision quoted has reference only to persons who have been issued a license by one or more of the other stat~s in the Union, and who apply for a license to practice optometry in Georgia. In such a situation, the State Board of Examiners in Optometry may grant a certificate of registration to the applicant without requiring the latter to undergo the prescrib~d examination. This action when taken would be in accordance with the rules of comity. The principle of "comity" is not a mere doctrine or rule of the courts. It is a principle involved in the relationships of nations or states with each other.. "Comity" implies reciprocity. The action taken which is based on comity is performed either as an actual reciprocation for similar action previously taken by the other state or in the ~xpectation that the other state will similarly reciprocate. "Comity" means that a state will do by courtesy what another state would do under like circumstances with a citizen of the former.
In re Fischer's Will, 181 A. 875 "Comity" is not a ruling of law but one of practice, convenience, and expediency. Comity ptrsuades but it does not command. National Electric Signaling Co., v. Telefunken Wireless Telegraph
Co., 221 F. 629. It is seen, then, that Subdivision (1) of Code Section 84-1105 does not
require nor make it mandatory for the State Board of Examiners in Optometry to grant a certificate of registration without examination to every applicant for admission to the practice of optometry in Georgia who has b~en so licensed in another state, but that the Board is vested with a certain discretion as to whether such foreign licenses are to be recognized or not.
As a matter of suggestion and, while the suggestions made are not to be considered as being exhaustive of the subject, the Board in exercising the discretion referred to above should generally follow the enumerated guides listed
below: (1) In no case should comity be extended in the recognition of foreign
licenses when by the laws of the foreign state concerned all of the required elements enumerated in Subdivision (2) of Code Section 84-1105 are not a r~quisite to be met before admission to the practice of optometry in that foreign state. To do so would be to work a prejudice against the residents of this state and would make possible a circumvention of the local statutes regulating admissions to the practice. The rules of comity do not go that far.
(2) .Those states having equal requirements for admissions to practice optometry and who recognize Georgia licenses and grant to the holders of

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Georgia licenses the privile:ge of practicing therein upon applications duly submitted and without examinations, should have recognized in Georgia, by comity, their own licenses.
(3) Those states having equal requirements but in addition having other standards of training that go beyond those required in Georgia should have their licenses recognized, provided they recognize our Georgia ones.
(4) As comity imports reciprocity, no licenses of a foreign state should be recognized in Georgia where the requirements for admissions are the same or gre:ater, unless that state has recognized those of our own or are likely to recognize them.
The remaining point to consider is the authority of the Board to require a six months' residence prior to accepting any application for a license to practice optometry. I do not find any provision in the Code Sections dealing with optometrists which places a requirement as to residence as an antecedent to the issuing of licenses for the practicing of optometry. Neithe:r do I find any grant to the Board of a discretionary power to make such a requirement. The Board must carry out its functions in accordance with the law. It cannot make new laws.
In view of the foregoing, I am of the opinion that the Board has no authority to prescribe any period of residence as a requisite before an application to practice optometry in Georgia will be considered or acce:pted. I am of the further opinion that the Board is not required, under the rules of comity, to issue licenses upon applications presented by persons licensed to practice in other states where such residence periods are required, where the recognition of Georgia license:s are held subject to that condition, but that the Board has the right to require such persons to undergo the examination as is set forth in Subdivision (2) of Code Section 84-1105.
PROFESSIONS, BUSINESSES AND TRADES-Optometrists The Georgia State Board of Examiners in Optometry may not prescribe the equipment nor personnel to be employed by practicing optometrists.
August 22, 1947 Dr. Walter L. Bell, President Georgia State Board of Examiners in Optometry
Reference is made to your inquiry as to whether or not the Board of Examiners in Optometry has the authority to require any practicing optometrist who carries on his work in more than one location to maintain in each place a permanent and well equipped office staffed by at least one person.
I find nothing in the law concerning optometrists and the regulation of the occupation which authorizes the Board of Examiners in Optometry to prescribe equipment nor personnel to be: employed in the offices of the practicing optometrists.
I am, therefore, of the opinion that the Board may not concern itself with those matters. This opinion is subject to the proviso, however, that, in any given situation, the lack of equipment may be so abusive: as to amount to the carrying on of the practice in a manner indicating highly unprofessional conduct. Even in such a situation the Board would not have the authority to prescribe the equipment, but after notice and hearing as provided for in Code Section 84-1110, the license of the guilty practitioner could be revoked or its renewal denied.

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PROFESSIONS, BUSINESSES AND TRADES-Optometrists The Georgia State Board of Examiners in Optometry may not control the conduct or type of practice of optometrists except as specifically authorized by statute.
August 22, 1947
Dr. Walter L. Bell, President Georgia State Board of Examiners in Optometry
This will acknowledge your request for an official opmwn as to whether or not the State Board of Examiners in Optometry may exercise control over the conduct and type of practice of all practicing optometrists.
By Code Section 84-1111 of the 1933 Georgia Code annotated, it is provided that:
"The practice of optometry by any unregistered or unlicensed optometrist is hereby declared to be a menace and a nuisance, dangerous to the public health and safety, and the Board of Examiners in Optometry shall promptly abate such practice by writ of injunction filed in the county in which such practice is conducted, and the writ shall be issued and the practice enjoined unless it shall be made to appear that such practitioner is licensed and registered. The Board is hereby empowered to file such petition and prosecute the said action, and it is made its duty to do so."
By Code Section 84-1110 of the 1933 Georgia Code annotated, it is provided that:
"The Board of Examiners in Optometry shall refuse to issue its certificate of registration and may revoke: its certificate of registration issued to any person who is not of good moral character, or who commits an act involving moral turpitude, or who is guilty of highly unprofessional conduct, or whose certificate was issued through error, fraud, or perjury: Provided, that in all such cases the Board shall serve written notice of the charges on such accused person at least 10 days prior to the date set for hearing, and said person shall be notified to appear before: the Board to answer the charges at such time and place as the Board may direct. Such notice shall plainly set forth the charges made, and notify the accused person to appear to answer the same. On such hearing, if the charges are found true, the accused having the right to produce witnesses in his be:half and cross-examine those testifying against him, the Board shall render judgment, after such hearing, and the person accused may enter an appeal to the next superior court of the county in which the hearing is held, if he is dissatisfied with the finding, such appeal to be governed by the: law relating to appeals in other cases."
The Code Sections quoted enumerate fully the authority vested in the Board which may be exercised by that body over any or all regularly licensed practicing optometrists or non-licensed practicing optome:trists. After admission to practice, there is no authority over licensed practicing optometrists given to the Board outside of the Code Sections cited. As it is to be perceived from the study of the Code Sections cited, there is no right or authority in the Board to control the conduct of practice nor the type of practice: engaged in by licensed practicing optometrists unless such conduct or type of practice be found to be highly unprofessional conduct; or unless the practitioner commits an act involving moral turpitude; or the practitioner's certificate was issued through error, fraud, or perjury; or the practitioner, while engaging in the

504
practice, is an unregistered or unlicensed optometrist. Conduct or methods of procedure used in the practice not falling within the categories listed are entirely beyond the authority of the Board to regulate.
It is, therefore, my opinion that subject to the above, the Board of Examiners in Optometry has no right to control the conduct and type of practice of any practitioner in optometry and this whether the practitioner was first admitted to practice within the past five years or prior thereto.
PROFESSIONS, BUSINESSES AND TRADES-Optometrists . Whether a violation of the code of ethics adopted by the State Association of Optometrists constitutes highly unprofessional conduct warranting the revocation of a license to practice optometry is an administrative question for determination by the Georgia State Board of Examiners in Optometry.
October 17, 1947 Hon. Walter L. Bell, D.O.S. President, Georgia State Board of Examiners in Optometry Macon, Georgia
Reference is made to your letter dated October 7, in which you ask an official opinion as to whether the provisions of the Code of Ethics enacted by the Convention of the State Association of Optometrists would be incorporated within the meaning of Code Section 84-1110, to the extent that a violation of the Code of Ethics might be deemed as constituting highly unprofessional conduct.
After a careful study and review of the laws relating to optometrists, it is my opinioJlo that nowhere in the law, nor more particularly, in Code Section 84-1110 is the Code of Ethics of the State Association of Optometrists incorporated as such and made a law of the State. However, what constitutes highly unprofessional conduct is a matter for the administrative determination of the Board of Examiners. Should the Board consider any given violation of the Code of Ethics as constituting highly unprofessional conduct, the Board, upon the service of written notice of the charges made against the accused, may conduct a hearing as provided for in Code Section 84-1110.
You are specifically reminded of the fact that this opinion is limited to the question asked and is in no way to be construed as determining what shall constitute highly unprofessional conduct within the provisions of the Code. As stated heretofore, such a determination is an administrative function to be open-mindedly and fairly exercised by the Board.
PROFESSIONS, BUSINESSES AND TRADES-Optometrists (1) The Georgia State Board of Examiners in Optometry may not encourage voluntary contributions to aid in defraying expenses of the Board. (2) The Georgia State Board of Examiners in Optometry may not incur expenses in excess of the fees received by it.
November 4, 1947 Hon. Walter L. Bell, D.O.S., President Georgia State Board of Examiners in Optometry
This will acknowledge your recent letter in which you request an opinion of the Attorney General upon the two following points:

505
(1) Would it be possible for the Georgia State Board of Examiners in Optometry to lawfully take the initiative in securing from the several licensed optometrists of the State a registration fee of $5.00 instead of the $3.00 registration fee prescribed by the Code?
(2) Is there any other department of the State that can expend funds for the expenses incurred by the Georgia State Board of Examiners in Optometry? These questions will be discussed in their numerical order.
(1) It is to be observed that Section 89-702, Georgia Code 1933 provides: "Any public officer who shall charge or take fees not allowed by law, or for service not performed, shall, on conviction or proof thE:reof, be dismissed from office." In the case of Walton County v. Dean, 23 Ga. App. 97, the court stated: "All officers charging costs, and exacting payment from the pocket of the citizen, must always show the authority of the law to do so." Again in the case of Adamson v. Leathers, 60 Ga. App. 382, the court said: "The rule is well settled that where fees or salaries are established for the services of public officers, the policy of the law prohibits special contracts between them and the public." In the case of Bowers v. Hank, 152 Ga. 659, the Supreme Court said: "Neither the counties of this State nor their officers can do any act, make any contract, or incur any liability not authorized by some legislative act applicable thereto." From the Code Section and the cases cited supra, it seems quite clear that neither the State Board of Examiners in Optometry, nor any member thereof would hav& any right under the law to solicit or encourage the collection of moneys not specifically authorized by the Statute creating and defining the powers of the said Board. This being so, it would make no difference that the said fees or additional payments were to be encouraged upon a voluntary basis. There is no provision whatsoever in the laws establishing the State Board of Examiners in Optometry which would authorize them to seek such voluntary contributions. Moreover, if the Board were to undertake such a voluntary solicitation of funds, it is quite likely that many members of the occupation would consider themselves compelled by good policy, if not by law, to extend the contribution asked. This would not be advisable; would be in derogation of the laws of the State, and would place the Board in a position of abusing its fiduciary relationship to members of the occupation as well as its legal relationship to the State and the members of the occupation. In view of the foregoing, it is my positive opinion that neither the State Board of Examiners in Optometry, nor any member thereof should encourage voluntary contributions to assist in meeting the expenses incurred in the administration of the affairs of the Board.
(2) As to your second question, I desire to cite Section 84-1106, Georgia Code 1933 wherein it is explicitly stated that: "All fees provided for in this Chapter (84-11) shall be paid in advance to the Joint-Secretary, State Examining Boards, who shall remit th& same to the

506
State Treasurer to be held as a fund for the use of said Board of Examiners as provided in this Chapter and in Chapter 84-1. No funds shall be paid out unless authorized by the president of the Board and the said Joint-Secretary, and no expense shall be created in excess of the fc,es as herein provided. Such funds shall be applied as contemplated by Chapter 84-1 and to making a reasonable compensation to the members of the Board."
From the Code Section cited, it is seen that the incurring of expenses for the operation of the, State Board of Examiners in Optometry is clearly and quite specifically limited to such sums as shall not be in excess of the fees collected in accordance with the dictates of Chapter 84-11. This is a limitation placed upon the Board. The limitation is binding. The Board is thus precluded from creating expenses which may exceed the incom10 allocable to the Board from the fees as set out in Chapter 84-11.
In view of these statements, it is my opinion that the Board may not call upon any other department or agency of the State government to make expenditures of funds for the obligations incurred by the State Board of Examiners in Optometry, and, further, that the Board must limit its expenses and financial obligations to a sum not in excess of the fees receivable.
PROFESSIONS, BUSINESSES AND TRADES-Optometrists The Georgia State Board of Examiners in Optometry may hold such special meetings as it may find necessary in addition to the regular semiannual meetings.
Novc,mber 4, 1947
Hon. Walter L. Bell, D.O.S., President Georgia State Board of Examiners in Optometry
This will acknowledge your communication of recent date in which you request an opinion of the Attorney General upon the following question:
"May the State Board of Examiners in Optometry hold meetings at the State Capitol at times other than on the first Wednesday in January and the first Wednesday in July for the purpose of holding semi-annual examinations and any other business that may come before the Board?"
The answer to the question is found in Section 84-1104 of the Georgia Code of 1933. This Section provides in part as follows:
"Said Board shall prescribe such rules, regulations and by-laws for its proceedings and governmc,nt as will carry into effect the provisions of this Chapter. There shall be at least two regular meetings of the Board of Examiners held every year on the first Wednesday in January and July. Special meetings may be held on the call of the president and two other members. A majority of said Board shall constitute a quorum. The Joint-Secretary, State Examining Boards, shall keep a record of the proceedings of the Board and a rc,gister of all applicants for license, giving the name, age and residence of each applicant and the county in which he proposes to practice; also showing the date of examination, whether the applicant was rejected or granted a license, and the number of the license granted."
It is my opinion that the Code Section confers upon the Board ample authority to hold such special meetings as it may find necessary to allow it to carry out the duties conferred upon it by Chapter 84-11. The Code Section specifically states that the Board shall meet at least twice a year and sets the

507
dates for these two meetings on the first Wednesday in January and in July. The Board must hold these two meetings and the fact that other meetings are held will not alleviate the requirement that the Board meet upon these two specific dates set by the law.
It is to be observed, however, that in the setting of special meetings the question of financing should be considered and if such special meetings would make necessary an expenditure of funds above those receivable from the fees set forth in Chapter 84-11, such meetings ought not to be called. If such meetings were in fact held and the expenses incurred exceeded the revenue allocable to the Board for its expenses, such expenses would be the personal obligation of the members of the Board.
PROFESSIONS, BUSINESSES AND TRADES-Optometrists A licensed optometrist-may practice in any county in the State provided he records his license in the office of the superior court clerk.
December 15, 1947 Dr. Walter L. Bell, Sr., President Georgia State Board of Examiners in Optometry
This will acknowledge your recent inquiry for an opinion on the following question:
Are regularly licensed optometrists limited by law to practicing the occupation to the confines of one county to such an extent that if they move from county to county they must register with the Ordinary in the subsequent county and by such subsequent registration thereby lose the right to practice in the counties of prior residence?
Section 84-1104 of the Georgia Code of 1933 makes it the duty of the Joint-Secretary, State Examining Boards, to keep a register of all applicants for a license to practice optometry in the county in which the applicant proposes to practice.
Again in Code Section 84-1105 it is provided that after an applicant has attained an average standing of seventy-five per cent on all subjects submitted by examination and has received a certificate of registration from the Board, the said certificate shall operate as a license to practice optometry "when it shall have been recorded in the office of the clerk of the Superior Court of each county in which said person practices".
In Code Section 84-1107 the following statement is made: "It shall be unlawful for any person to practice optometry in this State unless he shall have first obtained a license from the State Board of Examiners and filed same with the clerk of the Superior Court of the county in which
such practice is conducted." By applying to the above Code Sections cited the rule of construction of
statutes as set forth in Code Section 102-102 (4), which is to the effect that the singular or plural number shall each include the other, unless expressly excluded, it is to be seen that under any reasonable interpretation that regularly licensed optometrists may practice within the confines of any county -of the State, provided the said license shall have been recorded in the office of the clerk of the Superior Court in each county in which said person practices.
In accordance with the foregoing, it is therefore my opinion that a regularly licensed optometrist may practice optometry in any county of the

508
State provided he register his license in each county in which he intends to practice with the clerk of the Superior Court.

PROFESSIONS, BUSINESSES AND TRADES-Optometrists The Georgia State Board of Examiners in Optometry may not require a licensed optometrist to become a membE:r of the State Association of Optometrists.

December 15, 1947

Dr. Walter L. Bell, Sr., President

Georgia State Board of Examiners in Optometry

This will acknowledge your interrogatory in which you request my opinion

as to whether or not the State Board of Examiners in OptomE:try may propound

a rule whereby each registered optometrist may be required to become a mem-

ber of the State Association of Optometrists.

"'

I find nothing in Chapter 84-11 of the Georgia Code of 1933 which is

construable as conferring such authority upon the Board. The general authori-

zation of power conferred upon the Board by the GE:neral Assembly contained

in Code Section 84-1104, wherein it is stated that "said Board shall prescribe

such rules, regulations, and by-laws for its proceedings and government as

will carry into effect the provisions of this Chapter", is not so broad as to

confer the power upon the Board to require licensE:d optometrists to become

members of the State Association. This is especially true when it is considered

that nothing contained in the Chapter in any way relates to the said Associa-

tion and the general power granted is limited by express statement as applying

to the provisions contained in Chapter 84-11.

It is, therefore, my opinion that the Board may not require any licensed

optometrist to become a member of any professional association or private

organization.

PROFESSIONS, BUSINESSES AND TRADES-Pharmacists (Unofficial) A merchant may sell home remedies (which probably would include mineral oil) without qualifying as a pharmacist.
August 28, 1945 Hon. W. S. Williams Manchester, Georgia
Your letter of August 21st, in which you request that I advise whether or not it is legal for you, as a merchant, to sell mineral oil for medical purposes, received.
As a matter of information I call your attention to Section 84-1317 of the Code of 1933, which provides in part as follows:
"No person shall engage in the compounding or vending of medicines,
drugs, or poisons without full compliance with this Chapter, excE:pt: ,.. * * (the
exceptions do not apply to your question). This item shall be construed in the interest of the public health, and shall not be construed to prohibit the sale by merchants of home remedies, not poison, or the sale by merchants of preparations commonly known as patent or proprietary preparations when sold only
in the original and unbroken packages; * * *."

509
The Court of Appeals of the State in Lewis v. Brannen, 6 Ga. App. 419, in construing a similar statute said:
"It allowed merchants to deal in medicines already prepared, if patented, or, if not patented, are legally warranted by a licensed druggist."
In the conclusion of the Court it was stated as follows: "He cannot sell all patented medicines; he can sell only those which fall within the class called 'family medicines.' The expression 'family medicines' is synonomous with such expressions as 'domestic remedies,' 'household remedies,' etc., found in the statutes of other states and common in general parlance. It includes such things as camphor, quinine, spirits of turpentine, castor oil, saltpeter, epsom salts, etc." Citing, Peters v. Johnson, 50 W. Va. 644, 652, (41 S. E. 190, 57 L. R. A. 428)." With referencE: to mineral oil, the language of the Court of Appeals, in the Lewis case, is to the following effect applicable: "It is only a question for the jury whether a given drug or medicine is a family medicine or not.'' On the question of whether or not a mE:rchant, not a druggist, was authorized to sell turpentine, castor oil, sulphur and epsom salts in unsealed packages, Governor Arnall, while Attorney General, reached the following conclusion: "While the question admittedly is not free from doubt, it is my opinion that the General Assembly did not intend by the Act of 1927 to prohibit thE: sale by merchants of turpentine, castor oil and epsom salts in unsealed pack-
ages measured out by him from bulk containers. * *' *"
Opinions of the Attorney General, 1941-43, pages 162-165. This office has been informed by the State Food and Feed InspE:ctor Division that it is not their purpose to prohibit the sale of mineral oil by a merchant where the same is sold for medical purposes only. They contend that if mineral oil is sold for cooking purposes or for food purposes, that it is an adulteration or misbranding and violatE:s Sections 42-109 and 42-110 of the Georgia Code of 1933.
PROFESSIONS, BUSINESSES AND TRADES-Pharmacists The Georgia State Board of Pharmacy may not grant an examination to an applicant who is not a graduate of a recognized school or cellege of
pharmacy. November 27, 1946
Hon. Perry A. Whatley, President Hon. R. C. Coleman, Secretary Georgia State Board of Pharmacy
This will acknowledge your letter of November 19th, in which you state that the Board of Pharmacy has been operating under an opinion rendered by the Attorney General on February 8, 1945, and that the Board's authority to permit applicants to stand examination under this ruling has been questioned. You ask my opinion as to whether or not the Board o~ P?armacy ha.s the authority, under the law, to grant the privilege of examm.atwn to applicants who are not college graduates, but who have registe:;ed With the Stat: D~ug Inspector and were providentially hindered from takmg the last exammatwn
given by the Board.

510
Section 84-1313 of the Code of 1933 Annotated, provides the qualif:cations of applicants for registration as pharmacists, as follows:
"Each applicant for registration as a pharmacist shall not be less than 21 years of age, and shall be a graduate of a generally recognized school or college of pharmacy, and in addition shall have had 12 months of practical experitnce in a drug store or place where physicians' prescriptions are compounded by a licensed pharmacist registered undtr the laws of the State of his abode."
Under the Act from which the above section is codified, the only applicants excepted from the qualifications required as set out in said Section, were those bona fide citizens who had five or more years of experiencE: in their profession, who were examined prior to January 1, 1934, and bona fide citizens who were actually employed in a place of business optrated by a licensed pharmacist engaged in the practice of his profession ori March 8, 1933, and who filed with the State Drug Inspector within six months after 1\Iarch 8, 1933, notice of intention to apply for examination and presented themselves for examination within three ytars, and filed with the Board of Pharmacy evidence of graduation from an accredited high school.
It is my opinion that the law does not give the Board of Pharmacy the authority to change or modify in any respect the qualifications of applicants for registration as a pharmacist, as fixed by law, nor does it authorize the Board to grant any privilege of examination to those persons who have not complied with the law as Stt out in Section 84-1313. Therefore, I am not in accord with the opinion referred to in your letter, rendered on March 8, 1945.

PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers and Salesmen A real estate broker may not retain the amount received above the net listing, in excess of his usual commission, unless his contract with the seller so provides, and may not conceal from the seller the amount received from the purchaser.

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

June 18, 1946

Your letter of June 12th rt:oceived. You seek an opinion for the Georgia Real Estate Commission on the question of whether or not a real estate broker is entitled to collect more than the usual commission from the sale of real estate where the seller has given a net listing and the agent sells the property for considerably more than the net listed price and the usual commission, and whether or not an agent may fail to disclose to the seller the amount obtaint:od from the property where title passes directly from seller to buyer.
The terms of the contract between the seller and the real estate broker would be controlling. This opinion, therefore, could not be considered as applying to every form of contract that may be entHed into between the seller and the broker as agent of the seller. I am basing this opinion on the theory that the seller of real estate has listed with his real estate broker a tract of real estate to_ be sold at the best advantage, by giving a net price which must be obtained for the st:oller, and to be sold by the agent at the regular commission. I am not dealing with contracts whereby the real estate broker obtains an option to purchase at an accepted price.

511

Where the owner of property engages another to find a purchaser and to

negotiate terms of sale at a named minimum price or better, with or without

compensation, the relation shall subsist between the two of principal and agent.

See Arthur v. Georgia Cotton Company, 22 Ga. App. 431.

One of the first duties of an agent to his principal is that of loyaltv to his

trust. The court in the Arthur case states this duty as follows:



"The first duty of an agent is that of loyalty to his trust. He must not

put himself in relations which are antagonistic to that of his principal. His

duty and interest must not be allowed to conflict. He can not deal in the

business within the scope of his agency for his own benefit. (Civil Code of

1910, Section 3583; Sessions v. Payne, 113 Ga. 955 (39 S. E. 325); Forlaw v.

Augusta Naval Stores Co., 124 Ga. 261 (52 S. E. 898); Williams v. Moore-
Gaunt Co., 3 Ga. App. 756 (60 S. E. 372); * * *."

Under Section 4-204 of the Code of 1933 an agent, without the express

consent of the principal after full knowledge, may not sell himself the prop-

f>rty which he has been employed to sell. Section 4-205 of the Code of 1933

provides that the agent shall not make a personal profit from his principal's

property.

The Court of Appeals in the Arthur case states a further rule of law as

follows:

"Thus, an agent, be he gratuitous or otherwise, who has been entrusted

with authority to negotiate the terms of sale for his principal is not permitted

to receive from thf> buyer a secret profit from his principal's property, and

if such an agent places himself in a position antagonistic to that of his prin-

cipal, by recf>iving from the buyer a secret consideration for any act within

the scope of his agency, the contract thus negotiated by the agent in his own

interest is not binding upon the principal."

Under the principles of law hereinbefore pointed out I am of the opinion

that a real estate broker with whom real estate has been listed for sale would

be required to disclose to the seller the actual price which he is about to

receive for the property. If the contract between the broker and the owner

is to the effect that the broker is to make the sale and to receive for his serv-

ices the usual commission, even though the contract states a minimum price

for which the property would be sold, the broker would be entitled to receive

only his usual commission on the sale price. If the broker enters into a con-

tract with the owner where the owner is to receive a net amount, if the broker

could not sell for amount grf>ater than the net named, the broker would not

be entitled to a commission since he has contracted with the owner to the

effect that the sale would not be made unless the owner realized the net

amount. The broker would be entitled to his usual commission to be paid

from net amount realized above thf> net amount named, but should the sale

price be an amount greater than the net amount named and the usual com-

mission, the surplus above the net amount and the usual commission should

be disclosed to the seller and paid over to him unless the contract specifically

provides that the commission should be whatever is obtained by the broker

above the net amount named in the contract.

512
PROFESSIONS, BUSINESSES AND TRADES-Re~l Estate Brokers and Salesmen A corporation in a county having 75,000 or more population building and selling houses on property owned by it and subdivided into 20 or more lots, must obtain a license from the Georgia Real Estate Commission for itself and its employees engaged in selling.
July 30, 1947 Hon. R. C. Coleman, Joint Secretary State Examining Boards
I have your recent letter requesting an oprmon as to whether or not a corporation engaged in prefabricating and building houses on land subdividtd by the corporation and selling same through salesmen should obtain a license from the Georgia Real Estate Commission for the corporation and the employees engaging in selling.
As you know, Code Sections 84-1401 et. seq. applies only to counties having a population of 75,000 or more.
Code Section 84-1402 is as follows: "84-1402. 'Real estate broker' and 'real tstate salesman' defined.-Whenever used in this Chapter 'real estate broker' means any person, firm or corporation, who, for another and for a fee, commission or other valuable consideration, sells, exchanges, buys, rents or offers or attempts to negotiate a sale, exchange, purchase or rental of any estate or intertst in real estate, or collects, or offers or attempts to collect rent for the use of real estate; also any person, firm, or corporation advertising, through signs, newspapers or otherwise, as operating or conducting a real estate office or real estate business: Provided, however, this provision shall not be construed to include the sale or subdivision into lots by the bona fide fee simple holder of any tract or parcel of land; also any person, firm, or corporation subdividing a tract of land into 20 or more lots, or offering for sale a tract of land already subdivided into 20 or more lots, where such person, firm, or corporation sells or offers any of said lots for sale through salesmen, whether such salesmen be regularly or occasionally employtd, and whether they be paid salaries or commissions. 'Real estate salesman' means a person employed by a licensed real estate broker to sell or offer for sale, to buy or offer to buy, to negotiate the purchase, sale or exchange of real estate, or to lease, rent, or offer to lease, rent or place for rtnt any real estate for or on behalf of such real estate broker; also any person, other than bookkeepers and stenographers, employed by any real estate broker, as that term is defined in this section." To understand the above Code Section, it is ntcessary to review its history. The first part of this Code Section, that is, down to the first semi-colon or the clause ending with the words "for the use of real estate" was enacted in Georgia Laws 1925, page 326. The second clause beginning after the above quoted words and down to the stcond semi-colon, that is, ending with the words "parcel of land" was enacted in Georgia Laws 1927, page 308. The final clause of the first paragraph of said section down to the period, that is, ending with the words "salaries or commissions" was tnacted in Georgia Laws 1929, page 318. The proviso clause in the first paragraph of said Code Section, that is, the clause beginning with the words "provided, however" ends with the semi-colon which precedes the words "parcel of land". The last clause, therefore, which

513
was addt"d in 1929, is independent of the proviso clause, and the proviso clause affects only that portion of the Code Section which was added in 1927. For the legislature to have intended otherwise, it would have been necessary in 1929 to have placed the proviso clause at the end of the clause which was added in 1929.
It is manifest that we must conclude that if the corporation to which you refer is located in a county having a population of 75,000 or more, and if it is offered for sale a tract of land which has been subdivided into twenty or more lots, that said corporation is not excluded from the provision of said Code Section, as well as Code Section 84-1403 regardless of whether said corporation is the bona fide fee simple holder of said tract of land.
Obviously, the employees of said corporation engaged in selling are real estate salesmen and should also obtain a license.
PROESSIONS, BUSINESSES AND TRADES-Real Estate Brokers and Salesmen (1) The Georgia Real Estate Commission may sponsor educational programs in counties in which the Commission has jurisdiction and pay there~ for from funds provided for the expenses of the Commission. (2) More than one member of the Georgia Real Estate Commission, when designated by the Commission, may be compensated for attending interstate meetings.
December 4, 1947 Hon. R. C. Coleman, Joint-Secretary State Examining Boards
I have a communication from you in which you request an official opinion upon the following two points:
(1) Is the Georgia Real Estate Commission t"mpowered by law to sponsor educational programs in the several counties of the State in which the Commission has jurisdiction and to pay the expenses therefor from funds available and ear-marked as provided by law for the expenses of the Commission?
(2) May more than one member of the Georgia Real Estate Commission attend interstate meetings and generally do such acts and things as may to the Commission seem advisable for the advancement of the occupation?
Since these two queries are governed by the same statutes, and as each is to be determintd by the same process of analogy, I shall consider them together.
Section 84-1407 of the Georgia Code of 1933 provides as follows: "Each member of the Real Estate Commission shall receive as full compensation for each day actually spent on the work of said Commission the sum of $25 and his actual necessary t'xpenses incurred in the performance of the duties pertaining to his office, subject to the provisions of Chapter 84-1."
Section 84-1408 in part states: "All funds provided for by this Chapter shall be paid to and receipted for by the Joint-Secretary, State Examining Boards, and s?all not be used for any purpose other than the purposes contemplated by this Chapter and Chapter 84-1. All expenses incurred by the Real Estate Commission under the provisions of this Chapter, including compensation to the members of the

514
Commission and assistants, shall be approved by the Joint-Secretary and by the president of the Georgia Real Estate Commission: ..."
Section 84-102, Cumulative Pocket Part, Georgia Code of 1933, Annotatfod, enunciates in a portion thereof that:
"... The expenses of the members of the various boards shall be limited to actual expenses while in attendance upon the meetings of said respective boards, their legal per diem, and actual traveling expenses. One member of foach of the several examining boards may attend annually State and/or national meetings pertaining to the work of his respective trade or profession. The Secretary shall maintain an office in the State capitol, and all of the meetings of said respective boards shall be held in the capitol: Provided, that the examinations of applicants for licenses may be conducted at some other designated place in this State: Provided, further, that where examination dates are fixed by law, said datfos for the meetings or examinations may be changed to comply with the graduation dates of the various colleges and universities occasioned by the accelerated wartime program. All expense vouchers shall in such case be itemized, approved by the chairman of each respective board, and presented to thfo Joint-Secretary for payment."
Section 84-1404, Cumulative Pocket Part, Georgia Code of 1H33, Annotated, provides in part:
"... The Commission may hold its meetings in any county in this State over which it has jurisdiction. Members or anyone designated by the Commission in a spirit of cooperation and coordination may confer with similar commissions of other States and attend interstate meetings and generally do such acts and things as may to the Commission seem advisable in thfo advancement of the profession and the standards thereof."
While it is true that the Code sections quoted were codified from acts of the General Assembly passed at different times and some in sessions different from others, nevertheless, all of these acts and Code sections have to do with the same subject matter and ought to bfo treated prospectively and construed together as though they constituted one act. These statutes are in pari materia. See Wingfield v. Kutres, 136 Ga. 345.
Upon referring to Section 84-102, Cumulative Pocket Part, Georgia Code of 1933, Annotated, it will be seen that the provisos contained therein apply generally to all of thfo Boards created in Chapter 84-1. As such, it applies with equal force to the Georgia Real Estate Commission. Upon reference, however, to Code Section 84-1404, it is to be observed that the provisions there specifically apply only to the Real Estate Commission and to no other Board. Further research reveals that the former Code S~;:ction 84-1404 was amended by an Act of the General Assembly in 1941, (Ga. L. 1941, p. 342), whereby the Commission was authorized to ''hold its meetings in any county in this State over which it has jurisdiction. Members or anyone designated by the Commission in a spirit of cooperation and coordination may confer with similar commissions of other States and attend interstate meetings and genforally do such things as may to the Commission seem advisable in the advancement of the profession and the standards thereof". It must be presumed that the Legislature meant something by the passage of this amending Act. It seems to be obvious that the legislative intention was to authorize the members of the Board in their official capacity to visit other States and confer with the Real Estate Boards of those States, to attend in their official capacity

515

meetings in other States, to perform in their official capacity such other acts

as would seem advisable for the advancement of the occupation, and to hold

its official meetings in any county under its Jurisdiction. It is apparent that

the expenses incurred incidental to these special grants of authority are proper

expenses chargeable to the administrative fund available under the law to the

Commission and that the Legislature so intended. Such trips as are taken by the members of the Commission and such things they ma~ do to improve the

profession under the express and specific grant of this statutory authority are

official acts and functions and the expenses incidental thereto are payable from

funds set aside for the Commission. To opine otherwise would be to disallow

credit to the legislative wisdom for it would have been useless for that body

to formally allow the individual members of the Commission by statute to do

things which they might already do in their private capacities.

It is not uncommon to find one statute treating a subject in general terms

(as does 84-102 in the Cumulative Pocket Part of the Code) and another

treating only a part of the same subject matter in a more minute manner (as

does 84-1404, Cumulative Pocket Part of the Code). Where this situation exists,

the two statutes should be read together and harmonized. This is especially

true when the statutes are in pari materia as is the situation here. In the event

of repugnancy between two such statutes, the special statute should prevail as

the specific statute more clearly evidences the legislative intent than does the

general statute. This seems to be the better view even though the earlier

statute is special and the later statute general, for a presumption then arises

that the special was intended to remain in force as an exception to the general.

See Niagara Fire Insurance Co. v. Raleigh Hardware Co., 62 F. 2d 705.

Under this theory, Section 84-1404, Cumulative Pocket Part, Georgia Code

of 1933, Annotated, if repugnant to Section 84-102, Cumulative Pocket Part,

Georgia Code of 1933, Annotated, would prevail. But I do not believe the

statutes conflict. I hold to the view that the specific statute (84-1404, Cumu-

lative Pocket Part, Georgia Code of 1933, Annotated) grants "additional"

authority to the Commission which is cumulative of those general powers con-

ferred upon the Commission under the general statute codified in part in Code

Section 84-102, Cumulative Pocket Part, Georgia Code of 1933, Annotated.

In accordance with the views which I have expressed herein, I am of the

opinion that the two questions propounded ought to be answered in the

affirmative.



I wish to point out that nothing in this opinion may be construed as

authorizing the payment of any specific sum to the Commissi6n; or individual

members thereof, for the payments of such sums are subject to the approval

of the State Auditor.

PROFESSIONS, BUSINESSES AND TRADES-Veterinarians A graduate of a recognized veterinary college, giving not less than three

years' course of instruction, may not be required to stand an examination

for a license to practice.

November 7, 1946

Hon. R. C. Coleman, Joint-Secretary

State Examining Boards

.

I am in receipt of your Jetter of November 1, re~uestmg an op1~10n as

to whether or not the State Board of Veterinary Exammers have the right to

516
require an examination of all applicants for a license to practice veterinary medicine and surgery, or whether they must license without examination applicants holding a diploma from a recognized veterinary college giving not less than three year course of instructions as outlined in Section 84-1504 of the Georgia Code of 1933,
I am of the opinion that the last sentence of Section 84-1504, which reads: "Provided, however, that any applicant holding a diploma from a recognized veterinary college, giving not less than three years' course of instruction in the above-named subjects, shall be licenstd by the Board upon presentation of proof of such graduation", is mandatory upon the Board of Examiners and they must, without examination, grant a license to applicants who present proof of this requirement and who comply with other sections of this law as to payment of fees, etc.
PUBLIC DEFENSE-Active Duty (Unofficial) Military personnel undtrtaking official duties in connection with the state militia and while acting under proper authority relative thereto are on "active duty" for the duration of such duty. May 2, 1947
Hon. Francis Gremillion Louisiana Civil Service Commission Baton Rouge, Louisiana
Your letter of April 17th, requesting certain quotations from the laws and the Constitution of the State of Georgia, and my informal opinion as to what constitutes "active service" has been received.
The Constitution of the State of Georgia provides for a militia under Article 10, Sectioll 1, Paragraphs 1, 2 and 3, respectively, as follows:
"2-8101. Organization of militia. A well regulattd militia being essential to the peace and security of the State, the' General Assembly shall have authority to provide by law how the militia of this State shall be organized, officered, trained, armed and equipped; and of whom it shall consist."
"2-8102. Volunteers. The General Assembly shall have power to authorize the formation of volunteer companies, and to provide for their organization into battalions, regiments, brigades, divisions, and corps, with such restrictions as may be prescribed by law, and shall havt authority to arm and equip the same."
"2-8103. P~y of militia and volunteers. The officers and men of the militia and volunteer forces shall not be entitled to receive any pay, rations, or emoluments, when not in active service by authority of the State."
Article 5, Section 1, Paragraph 10 of tht Constitution of Georgia provides as follows:
"2-3010. Commander-in-Chief.-The Governor shall be commander-in-chief of the army and navy of this State, and of the militia thereof."
The 1933 Georgia Code, Annotated, Sections 40-201 and 40-202, provide respectively as follows:
"40-201. Calling out military to enforce law.-It shall be tht duty of the Governor to see that the laws are executed. For this purpose he shall have power, as commander-in-chief, to call out the military wherever, in his discretion, the due enforcement of the process of the courts shall be so resisted and set at defiance as to require such interposition."

517
"40-202. Calling out military in case of insurrection or invasion.-In case of invasion or insurrE:ction, the Governor may call out the National Guard or the militia, or both, for the defense of the State, until such time as the General Assembly shall meet; and when so called into action, he shall have power to make all necessary provision for their transportation, accommodation, equipment, and support."
As to your query as to what constitutes "active services", it seE:ms logical and unquestionable that in order to maintain a "well regulated militia" training !Jeriods are vital and necessary. It follows that in order to maintain discipline and to alloW' for the accountability and responsibility for equipment issued; that there must be those who possess the necessary authority of command. This command authority can only be exercised when the individuals or units are upon "active service".
It is to be observed that all members of the reserve commands of the Army of the United States are considered as being on "active servicE:" for that portion of time spent in training while under official orders.
It is, therefore, my opinion that all military personnel undertaking official duties in connection with the State Militia, and while acting under proper authority relative thE:reto, are to be considered as being upon "active service" for the duration of such duty.

PUBLIC DEFENSE-Adjutant General (1) A person more than 64 years of age may not be appointed Adjutant

General. (2) The appointment of an ineligible person as Adjutant General did not
remove him from his position as Commander of the Georgia State Guard. (3) The Commander of the Georgia State Guard may not serve as Acting

Adjutant General.

February 13, 1947

Hon. M. E. Thompson Acting Governor of Georgia
Your letter of FE:bruary 11th received. You request my advice on three questions relating to the appointment of R. W. Collins as Adjutant General by
Governor Ellis Arnall on January 15th. In question one you state that General Collins was over the age of sixty-
four at the time he was appointed by Governor Arnall and request that I advise whether or not he was eligible for appointment at that time.
Section 86-501 of the Cumulative Pocket Part of the Annotated Code provides that no person shall be eligible to hold the office of Adjutant General unless h: shall be not less than twenty-five nor more than sixty-four years of age at the time of his appointment. General Collins being over sixty-four at the time of his appointment was, therefore, by virtue of this provision of law,

ineligible for appointment.

'

. .

In the second question you asked advice as to whether or not the appomt-

ment made by Governor Arnall of General Collins as Adjutant .Gene:al at a

time he was ineligible for appointment had the effect of removmg him frem his position as Colonel Commanding the Georgia Stat: Guard. You st~te that

there was no resignation of his commission as Colonel of the Georgia State

Guard.

518
The. Supreme Court in McWilliams v. Neal, et al., 130 Ga. 733, held in .effect that where a person was elected to an office to which he was ineligible, this did not work an ouster from the office which he held at the time for which he was eligible, but did only affect his right to take the last office. Un.qer that ruling I am of the opinion that since General Collins did not resign from his position as Commander of the Georgia State Guard, his appointment to the position of Adjutant General to which he was ineligible would not have the effect o:( removing him from his position as Colonel, or Commander of the Georgia State Guard.
In your third qu~stion you asked whether or not the Colonel commanding tPe. Georgia State Guard can be legally designated as the Adjutant General of the State of Ge:orgia.
Section 86-1601 of the Code, Cumulative Pocket Part, provides that whenever any part of the National Guard of the State is in active Federal Service, the. Governo;r may enlist, organize and maintain units or regiments to be known as the Georgia State Guard and to be distinct from the National Guard. Under Section 86-1615, Cumulative Pocket Part, the commanding officer of the State Guard shall .hold thf: rank of colonel and shall report directly to the Governor fol,' instructiqns, orders and direction as to the use of the Gum:d in any kind of an emergency. Under these provisions of the act providing for. the State Guard, I am of the opinion that the Georgia State Guard is separate and distinct from the National Guard and it is very questionable whether or not the commanding officer of the State Guard could be designated as Acting Adjutant General. I am incline:d to the view that he can not serve as Colonel or Commander of the Georgia State Guard and at the same time act as Acting Adju~-~~t General.

PUBLIC DEFENSE-Governor's Horse Guard

Property formerly owned by the Governor's Horse Guard, whim its charter

. expired. in 1943, now belongs to the State and may be disposed of by legislative direction.

Hon'. Alpha. A. Fowler, Jr. Adjutant General

August 28, 1947

This will acknowledge your letter of August 21st, in which you request an opinion in relation to certain property owne:d by the Governor's Horse Guard. You sent me several enclosures, one of which is a copy of the. charter of the Governor's Horse Guard, Inc. You state that the Guard owns certain stables located near Piedmont Park in Atlanta, and that the citizens of Atlanta

are .desirous .of having these stables removed and the property conve:rted to

other purposes. You also point out that the charter of this corporation expired in 1943, and that the said organization has been inactive since that date.

There are no. spe:cific statutes relating to the Governor's Horse Guard.

The corporation did not have capital stock and was not operated for pecuniary gain or profit to its members. Its sole purpose as a corporation was to exist
as a military organization. Since this corporation cannot be classified as a part of the State govern-
ment, it becomes necessary to study the provisions of its charter in order to

determine how the property should be disposed of upon dissolution of the corporation. Section 10 of the incorporation provides as follows:

519
"If and when said corporation for any reason whatever shall cease to exist as a body corporate or to function as a military organization, the title to all property, money and effects of whatever kind and character of said corporation shall vest in trust in the Adjutant General of the State of Georgia, or other officer nearest corresponding to Adjutant GenE:ral, should that office not be in existence, to be by him conveyed to some other military organization of Fulton County, Georgia, nearest like said corporation in its function and duties, in trust for military purposes; and in the event such officer shall de, cline or fail to act, then a Judge of the Superior Court of Fulton County shall direct the transfer of said property to such military organization as he ma'y determine. If there should be a failure on the part of said. officer and court to direct the disposition of said property, then same shall revert to and become the property of the State of Georgia, to be disposed of in accordance with th.e legislative will; except all property, money and effects held by said corporation in specific trust shall be disposed of in accordance with the .Provisions of such trust."
I understand from you that Fulton County does not have a military organization which would correspond to the Governor's Horse Guard. If this fact is true, then the Adjutant General and likewise a judge of the Superior Court of Fulton County would be unable to transfer the property in question tq another organization in Fulton County. This would mean that the. property shall revert to and belong to the State of Georgia, to be disposE:d of in accordance with legislative enactment.
In keeping with Section 10 of the article of incorporation, I am of the
is opinion that the property in question belongs to the State of Georgia and
subject to be disposed of by the GenE:ral Assembly. It is my suggestion that this matter be referred to the legislature at its next sessiori in order that it may make a proper disposition of the property in question.

PUBLIC FINANCE-Refunding Bonds (Unofficial)

The provision of the 1945 Constitution with reference to the issuing of

refunding bonds to pay outstanding bond issues of cities and counties

may not be construed to require the surrender of outstanding issues whicb

are not subject to call.

"'

January 22, 1946

Hon. Ellsworth Hall, Jr.
County & City Attorney
Macon, Georgia Your letter with reference to the issuance of refunding bonds has been

received. We quote the following from your letter: "The question has arisen as to the intention of the provisions of .the new
Constitution respecting the issuing of refunding bonds to pay outstandmg bond

issues of cities and counties.



"Even assuming that it was the intention of these provisions' to com?el the surrender of outstanding issues which are not subject to call, do you th~nk

that such a provision' would be valid as to the holders of such outstandmg

issues?" It appears to me that these bonds are contracts entered into between tlie

520
city or county and the bondholders, which contract provides for the payment of certain sums of money at certain times. Not being subject to call, it would seem that the bondholder would have the right to insist that the contract be carried out to the letter. W : think that if it was the intention of the provision of the Constitution of the State of Georgia to compel the surrender of outstanding issues which are not subject to call that this would be in direct conflict with the Federal Constitution which forbids the enactment of any laws impairing the obligations ef contracts, and that to construe the Georgia Constitution as intending to violate such contracts would be to construe it as being in conflict with the Federal Constitution.
I think the clear intention of the framers of th: Constitution was that this should apply only' to those instances where the bonds are subject to call, or where the bondholders are willing to surrender these outstanding obligations.
You are familiar with the rule that where two constructions may be given a law, one of which may be constitutional and the other unconstitutional, that construction which would render the law constitutional is the one to be adopted hy thE: courts.
As to the impairment of the obligation of the contract, we call your attention to the case of White v. Hart & Davis, 20 L. ed. 685, decided April 22, 1872, which was carried up from the Supreme Court of Georgia, from which we quote:
"It is well settled by the adJudications of this court, that a State can no more impair the obligation of a contract by adopting a constitution than by passing a law. In the eye of thE: constitutional inhibition they are substantially the same thing."
"... The question presented by this proposition was fully considered by this court in Van Hoffman v. Quincy, 4 Wall., 552 (71 U. S. XVIII, 409). The city had sold its bonds under Acts of the Legislature of Illinois, which authorized their issue and required the assessment and collection of a special tax to meet the inter:st; and it was declared that the amount so raised should be applied to that object 'and to no other purpose whatsoever.' The Legislature subsequently passed an Act which prohibited any tax beyond the amount therein specified to be imposed. This tax yielded a sum barely sufficient to meet the municipal wants of the city-leaving nothing to be applied to the inter:st upon the bonds. This court held the prohibition, so far as it affected the special tax, to be void, and by a writ of mandamus ordered that tax to be collected and applied, as if the subsequent Act had not been passed. It was said, 'The laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly
r:ferred to or incorporated in its terms. *" * * Nothing can be more material
to the obligation than the means of enforcement.' Without the remedy, the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are insE:parable, and both are parts of the obligation which is guaranteed by the Constitution against invasion. The obligation of a contract 'is the law which binds the parties to perform their agreement.' It was said further, that the State may modify the remedy, but not so as to impair substantial rights; and that whenever this result 'is produced, the act is within the prohibition of thE: Constitution, and to that extent void.' "

521

PUBLIC HEALTH-Dead Bodies The Milledgeville State Hospital is not required to deli~er unClaimed bodies
of deceased inmates to the board of distribution but may do so in the
discretion of the superintendent and medical staff.

Hon. A. J. Hartley, Director

April 4, 1947

Department of Public Welfare

Your letter of March 26th, enclosing a copy of a letter from Dr. Kelly

addressed to Dr. Yarbrough, received. You request that I constru: Section

88-702 of the Code of 1933 and determine whether or not the State Hospital at Milledgeville is required to deliver the bodies of unclaimed dec:ased persons

who died in the Hospital, or whether or not the State Hospital at Milledgeville

is exempt from such requirements as set forth in Section 88-702.

Section 88-702 provides in part as follows:

"All public offic:rs of this State and their assistants, and all officers and

their deputies of every county, city, town or other municipality, and of every

prison, chain gang, morgue, public hospital, sanatorium or sanitarium (except

the Milledgeville State Hospital, which institution shall have authority to per-

form autopsies on the dead bodies of persons dying as patients in said institu-

tion, all in the discretion of the superintendent and medical staff of said institution), having control over any dead human body, not dead from contagious

or infectious dis:ase, and required to be buried at public expense, are required

to notify the board of distribution, or such person as may from time to time be designated in writing by said board, or its duly authorized officer, whenever

any such body comes into their possession or control, and shall, without fee

or reward, deliver such body, and suffer the board and its duly authorized

agents who may comply with the provisions of this Chapter, to remove such

body, to be used only within this State, sol:ly for the advancement of medical

science." Under the provisions of this Section all public officers of the State and

their assistants and officers of every county, city, town or municipality, and

of every prison, chain gang, public hospital, sanatorium or sanitarium, prior to the Act of the General Assembly approved in 1920, (Ga. L. 1920, p. 130), were

required to deliver to the distribution board the bodi:s of unclaimed persons

who died in such institutions. The 1920 Act was an amending Act which added

the following language: "except the Milledgeville State Hospital, which institution shall have

authority to perform autopsies on the dead bodies of persons dying as patients

in said institution, all in the discretion of th: superintendent and medical staff

of said institution." I construe the 1920 amendment, adding the above stated exception, to
have the effect of exempting the Milledgeville State Hospital from the pro-

visions of the Act which required that unclaimed bodies be de1iv:red by the

named institutions to the distributing board to be used by the State colleges

for lectures and demonstrations to further the medical science and training of

students as doctors. While I think it was the intention of the General Assembly to exempt the

State Hospital at Milledg:ville from the provisions of the Act, and from the

requirements of the Code Section, the superintendent and medical staff of the institution have the discretion of complying with the requirements and of

522
delivering the bodies to the distribution board to be used by the schools apd colleges. Where such bodies are unclaimed by any relative for the purpose of burial, I am of. the opinion that the State Hospital Authorities should, insofar as it does not impede their work of promoting science in the line of their study and work, co;mply with the requirements of this, Section of the Code.
PUBLIC HEALTH-State Board . (1) The State Board of Health may not compensate a person on inactive status pE;rforming no duties for the State Department of Public Health. (2) The State Board of Health may employ the former Director of the State Department of Public Health to actively assist the present Director in the discharge of his duties.
September 13, 1945 Hon. T. F. Abercrombie, Director Department of Public Health
I am pleased to acknowledge your letter of September 11th, in which you state that the State Board of H10alth has expressed a desire to employ you on an inactive status in the near future. You ask whether or not the following resolution could be properly passed by the State Board of Health.
"The State Board of .Health hereby employs Dr. T, F. Abercrombie to assist the Director of the Department of Health in the discharge of his duties and responsibilities. Dr. Abercrombie, because of his valuable experience in health matters, shall meet with the State Board of Health. and advise the State Board on all matters coming before it.
"In addition to thE: above duties, the said Dr. T. F. Abercrombie is to perform any other services that may be required of him by the director of the Department of Public Health or the State Board of Health.
"For these services he shall receive the sum of $.................... annually. This contract of employment is to become effective upon the resignation of the said Dr. T. F. Abercrombie from his presE:nt position as Director of the Department of Public Health.
"The Advisory Council to the Board of Health concurs in this appointment.
"The above and foregoing resolution was unanimously adopted by the State Board of Health and the Advisory Council thereto on the ................day of................................................, 1945."
While you state in your letter that the State Board of Health desires to fix it so that you may be placed on an inactive status, the resolution quoted in your letter seems to clearly indicate that your status will not be inactive, but rathH requires you to perform certain definite services and to be in a position to perform still other duties and responsibilities which the Director or the State Board of Health may see fit to impose upon you. I have serious doubt as to the authority of the State Board of Health to place you or any other employe on inactive duty. The State would not be permitted to pay extra compensation for duties which have already been performed at a fixed salary. Paragraph 2 of Section 1 of Article 7 of the new Constitution providE:s as follows:
"1. The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association.
. "2. The General Assembly shall not grant or authorize, extra compensa-

523

tion to any public officer, agent or contractor after the service has been

rendered or .the contract entered into."

. The Supreme Court of this State in Twiggs v. Wingfield et al., 147 Ga.

790, held as follows:

"A public officer takes his office cum onere, and so long as he retains it

he undertakes to perform its duties for the compensation fixed, whether such

duties be increased or diminished. He can not claim extra compensation for

the performance of additional work within the line of his official duties, unless

additional compensation is provided by competent authority." . . In line with the above provisions and decision "of the Court; it is. my opi~ion

that the State Board of Health is not authorized to provide compensation for

a person who is inactive and not performing services for the State in return

for ,the emolument received. However, as stated above,. I interpret the quoted

resolution herein cited as definitely showing that you are not to assume an

inactive status, but quite to the contrary, are to perform certain defined. duties.

It is entirely possible that the services which you may render as an assistant to

the Director. of the Department of Public Health, due to your valuable knowl-

edge and experience gained over the years, will be just as beneficial as. the

.services rendered while you were Director of the Department. of Public Health.

:.-:.c Section 88-101 of the Code of Georgia provides as follows:

"There is hereby created and established a Department of the State gov-

ernment to be known as the Department of Public Health, under the manage-

ment and control of a Board of Health."

.. '.

The above provision of law authorizes the State Board of Health to man-

age and control .the Department of Public Health. This necessarily includes

the right to employ and discharge personnel. It is therefore my opinion that

the. State Board of Health has a discretion as to whether or .not in its judg-

ment such a contract of employment as the one quoted herein, should .be en-

tered upon. This is a matter which addresses itself to the sound discretion of

,the State Board of Health. Should .the Board decide that such a contract of .employment i~ for the best interests of the State Department of Health, it

would, in .my opinion, be authorized to employ you in the capacity .stated in

the resolution. The State Board of Health is naturally familiar with the health

problems .confronting the State of Georgia, and the Board necessarily. knows

the personnel which can best assist in carrying out the health program of

Georgia. Should the State Board of Health decide in view of the circumstances

enumerated herein to exercise its discretion in the affirmative, it is my opinion

that such a contract of employment as the one contained in this resolution

would be justified under the laws of this State.

PUBLIC HEALTH..:..:._State Board . The State Board of Health may, with the approval of the Budget Bureau, allot funds from its regular appropriation to pay the expenses of the hospital advisory committee created by the Act of 1946, pp. 34-39.
February 4,.1946
Ron. T. F. Abercrombie, Director Department of Public.Health
.., 1 am :pleased to acknowledge your letter of January 30th, in which you

524
ask the following question in reference to H. B. No. 732 passed at the recent session of the General Assembly relating to the regulation of hospitals:
"Please advise me if we will be authorized, under Section 9 of the Act, in getting the Advisory Committee appointed and paying the expenses of its members from funds allotted ~rom the regular appropriation to the State Board of Health."
Section 9 of the Bill referred to in your letter, reads as follows: "This Act shall not become dfective or operative in any respect as to any provisions herein contained unless and until funds have been made available to the State Board of Health for the purposes herein enumerated by the Federal Government, the State, or any of its political subdivisions, or from any other source." The Legislature in the General Appropriation Act of 1943 (Ga. L. 1943, p. 89) made the following appropriation for the Department of Public Health: "Section 18. For the cost of operating the Department of Public Health ... $600,000.00." Section 9 above quoted cannot become effective until funds have been made available to the State Board of Health either by the Federal Government, the State, or any of its political subdivisions, or from any other source. The $600,000.00 appropriation above referred to would include a fund available for the operation of H. B. No. 732, provided the State Board of Health sees fit to allot funds for this purpose. Section 88-101 of the Code provides: "There is hereby created and established a department of the State government to be known as the Department of Public Health, under the management and control of a Board of Health." In my opinion, the State Board of Health can properly allot funds from its rE:gular appropriation for operating the Department of Public Health in order to pay the expenses of the Advisory Committee, provided the same is approved by the Budget Bureau. The Hill-Burton Bill referred to in your letter has passed the United States Senate, and is now in the House of Representatives. It provides that funds for hospital construction will not be available before July 1, 1946, and that the State agency designated to handle these funds must submit plans for their use and adopt rules and regulations for maint{:nance of such hospitals after consulting a hospital advisory committee. This makes it necessary for the State committee to be appointed and have available plans to submit to the Federal Government when such Federal funds become available.
PUBLIC HEALTH-State Board The State Board of Health may contract with the Federal Works Agency for Battey General Hospital to be used as a Stat{: tuberculosis sanitariun1 and may authorize the Director of the State Department of Public Health to sign the contract on behalf of the Board.
March 19, 1946 Hon. T. F. Abercrombie, Director Department of Public Health
You called and requested an official opinion relating to the authority of the State Board of Health to enter into a contract with the Federal Works Agency of thE':' United States of America for Battey General Hospital to be used

525
by the State as a tuberculosis sanitarium, and also as to the authority of the State Board to give you power of attorney by Resolution to sign the contract on behalf of the Board, acting for the State of Georgia.
The General Assembly in 1933 (Ga. L. 1933, pp. 7, 8) established a Department of the State government known as the Department of Public Health, under the management and control of a Board of Health. Section 88-101 of the Code of 1933.
In 1943 (Ga. L. 1943, p. 210) the General Assembly gave the Board of H~;alth power to acquire hospitals or other property deemed advisable to afford proper treatment and care to patients and to carry out the public health program in the State. This power is incorporated in Section 88-123 of the Pocket Part of the Annotated Code of Georgia and is in the following language:
"The Board of Health of the State of Georgia shall have the power to acquire such laboratories, hospitals, or other property, either real or personal, by gift, purchase, devise or othe:rwise, as the said State Board of Health shall in its discretion deem advisable to afford proper treatment and care to patients and to carry out the public health program in this State."
The power to acquire hospitals and other property for the treatment and care of patients and to carry out the public health program in the State would include the right to contract therefor. The Board may acquire the property by gift, purchase, devise or otherwise, which would nece:ssarily include the right to enter into a contract of permissive use as proposed by the Federal Works Agency of the United States Government.
The State Board of Health is an agency of the State, its members are offieers of the State, and the State Departm~;nt of Public Health is under control of the Board. The State Board acts for the State and the title to any property acquired by the Board would vest in the State. Contracts made by the Board acting within their authority binds the State. As hereinbefore pointed out the Board has authority to acquire for the State hospitals and property connecte:d
therewith. In my opinion the proposed contract should be signed the State Board of
Health acting for the State of Georgia by the person designated by the Board
to sign and execute same. Section 88-107 of the Code of 1933 provides in part as follows: "The Board of Health shall establish such rule:s and regulations for its own
direction as it. may deem proper and may confer upon the Director of the Department of Public Health such duties and powers as it deems proper."
Under the authority given the Board, the State Board of Health would have the right to delegate to you the power to execute the contract. Authority should be given by a resolution passed by the Board and spread upon its minutes.

526

PUBLIC HEALTH-State Board

(1) The State Board of Health is the proper State agency to administer

the hospital program under the provisions of the Hill-Burton Act lof

Congress.

(2) The hospital advisory committee created by the Act of 1946, pp. 34-39,

is the Advisory Council designated by the State in compliance with the

Hill-Burton Act.*

August 31, 1946

Hon. T. F. Abercrombie, Director

Department of Public Health

I am pleased to acknowledge your letter ofAugust 29th, in \''hich you make

reference to certain provisions of the Hill-Burton Bill authorizing grants in did

to States for the construction of hospitals. In your letter you state the

following:

"Your particular attention is called to Section 612, Subsection (a) Para-

graphs (1) and (2) (page 2), and Section 623, Subsection (a), Paragraph (1)
and (3) (page 6). Section 623, Subsection (a), Paragraph (2) (lJage 6), le-

. quires that we have 'satisfactory evidence that the State agency designated in

accordance with paragraph (1) hereof will have authority to carry out su!!h

plan in conformity with this part.'

i;.

"Therefore, I request that you give me your opinion as to the authorityof

the State Board of Health and the State Department of Public Health in this

respect.''



The laws of this State have clearly designated the State Board of Health

as the sole State agency for the administration of all matters "relating to tbe

preservation of the life and health of the people" of this State. (Section 88-1'1.2

of the :Code of Georgia of 1933.)

Iri 1945 the Legislature of this State passed a resolution in \Vhich, among

other things,. the following provisions appear:

:

"Whereas, One of Georgia's greatest needs is an expanded, serviceable, and

intensive health program designed to eradicate disease, improve health condi-

tions, accentuate the importance of health work, the economic value of gdtid

health, and the economic liability of poor health; and"

:.

" (5) 'l'hat the State Board of Health is designated and authorized to be-

come the channeling agent on behalf of the State forsuch health ftinds as may

be made available by the Federal Government."

., ...

"(11) The said State Board of Health shall make plans and un.dertake'to

effectually supply health service to various counties of this. State and to co-

operate with local communities, counties, districts, and regions ii1 the matte.r' of

constructing and assisting the said units in the maintenance and operation >of

hospitals and health centers.''

" (13) The State Board of Health shall provide for a State Advisory

Council on health work which shall include representatives of non-governmental

organizations or groups and all State and local agencies concerned with the

operation, construction, or utilization of hospitals and hospital facilities. The

said Advisory Council shall diligently undertake to obtain all possible available

Federal funds for health work in Georgia and shall make recommendations to

the General Assembly through the State Board of Health as to how Georgia

may best serve the interest of the people through expanded health services.''

Opinion supplemented Feb. 25, 1947, page 528.

527
I am of the opinion that the State Board of Health, by virtue of the above laws, has been designated as the sole State agency for the administration of the plan contained in the, Hill-Burton. Bill, and that the State of Georgia has provided a State Advisory Council, which complies with the requirements of the aforesaid congressional statute.
The Hospital Advisory Committee is provided for in Section 2 of House Bill 732 passed at the 1946 Session of the General Assembly of Georgia. This provision of law provides in part as follows:
"Section II. There shall be established a hospital advisory committee to advise with the State Board of Health on the, policies and rules and regulations necessary for carrying out the purposes of this Act. The membl)rship of this committee shall consist of three hospital administrators or persons with broad experience in hospital administration appointed by the Georgia Hospital Association, five members appointed by the Medical Association of Georgia, one member- appointed by the Georgia Nursing Association, one member appointed -by the Georgia Dental Association, five lay members, with broad civic interests representing the various segments of .the population appointed by the Governor, the Director of the State Department of Public Health, the Director of Public Welfare, the Attorney General, and the State Auditor."
I trust that this opinion gives you the desired information and that the same may be used as satisfactory evidence of the fact that the State of Georgia has designated the State Board of Health as the p~oper State Agency to carry out the hospital plan, and that likewise the State has designated a State Advisory Council, all of which is in compliance with Section 623 of the Hill-Burton Bill.

PUBLIC HEALTH-State Board The State Board of Health may accept a deed to Battey General Hospital from the Federal Government containing a provision that it .shall revert to the grantor if not used for the purposes for which conveyed.

''

February 5, 1947

Hon. T. F. Abercrombie, Director Department of Public Health . Several days ago I wrote you an official opm10n holding that the State :Board of Health could accE>pt title in its name for and on behalf of the State of Georgia to the Battey State Hospital property. I understand now that attorneys representing the Federal authorities have raised the point as to whether or not the State of Georgia could accept title to this property since there were certain restrictions and limitations containE:d in the proposed transfer of the property. These limitations provide that if the hospital is not used for the purposes for which it is conveyed, title shall revert to the Federal government.
These restrictions and limitations proposed in the deed do not in any way change my original opinion on this subject to the E>ffect that the State Board of Health is authorized by the Act approved March 20, 1943 (Ga. L. 1~43.' p. 2l0) to accept the Battey General Hospital even though ~here are restrictiOns and limitations on the transfer contained in the deed. Smce the State Board of Health has authority to accept the hospital by an outright gift,_ purchase or otherwise it is my opinion that it would likewise have the authority to accept anything iE;SS than full and ~omplete title conditioned upon the performance Of
certain conditions contained in the deed.

528
The State of Georgia of course can accept no better title than the Federal government is willing to convey to us. If there are conditions contained in the deed which limit our title or divest us of same if the State doe,s not fully perform the conditions stated therein, then of course upon our failure to live up to such conditions title would revert to the grantor.
Should there be any doubt in the minds of anyone concerning the right of Georgia to accept the hospital by the authority contained in the Act approved March 20, 1943, I desire to point out that a resolution was passed relating to Batte,y General Hospital on February 1, 1946. (Ga. L. 1946, p. 704) This resolution provides in part as follows:
"Be it Resolved ... that the Hon. Walter F. George and Hon. Richard B. Russell, together with our Congressional delegation, use their best efforts to speedily and effectively cause the negotiation for the transfer of Battey General Hospital to the State of Georgia to be fully and completely consummated."
There can be absolutely no doubt that the Legislature of this State: has definitely manifest a desire that the Battey General Hospital be transferred to this State and that title, conditional or otherwise, could be placed in the State Board of Health.
PUBLIC HEALTH-State Board The State Board of Health may do all things m:cessary to administer the hospital survey and construction program under the Hill-Burton Act of Congress.*
February 25, 1947 Hon. T. F. Abercrombie, Director Department of Public Health
I am pleased to acknowledge your letter of February 21st, together with an enclosed copy of a letter from the United States Public Health Service, requesting a ruling on the authority of the: State Board of Health to administer the hospital survey and construction program as outlined in the Hill-Burton bill. You desire that I give you a ruling on the request made in the enclosure.
In an opinion under date of August 31, 1946, I held that the State Board of Health was the sole agency for the administration of all matters re,lating to the preservation of the life and health of the people of this State. (Section 88-112 of the Code of Georgia). I also specifically ruled in that opinion the following:
"I am of the opinion that the State Board of Health, by virtue of the above laws (Ga. L. 1945, pp. 1218-1221) has been designated as the sole State agency for the administration of the plan contained in the Hill-Burton bill, and that the State of Georgia has provided a State advisory council, which complies with the requirements of the aforesaid Congressional statute."
I am of the opinion that the laws of this State authorize the above agency to engage in all necessary activities in order to fully carry out the express mandate of the Legislature. This authority includes the right to make an inventory of e:xisting hospitals, surveying the need for additional facilities, development of a program for hospital construction, receiving and approving applications and setting reasonable conditions on the approval of same, the
S'upplementing opinions of Aug. 31, 1946, page 526.

529
establishment of priorities on such approval, inspection of projects, holding of hearings, making reports to the Surgeon General, and participation in hearings before that officer.
The above enumeratE:d powers, in my opinion, are clearly implied in the various health statutes of this State, particularly the Act referred to above which was approved March 8, 1945.
I note that the enclosed letter from the office of Hon. John A. Lewis, Jr., of the United States Public Health Service, District No. 4, states that "there must also be authority for the maintenance of a personnel merit system." The laws of this State do provide for such a merit system.
It was the purpose of the 1945 Act above referred to, to make the State Board of HE:alth the "channeling agent on behalf of the State for such health funds as may be made available by the Federal government." It was likewise expressly stated in that Act that the State Board of Health should make plans and undertake to effectually supply health services and assist local units in the maintenance and operation of hospitals and health centers. It seems clear that the State Board of Health would have the implied authority to do all acts necE:ssary to properly carry out the express purposes of the Legislature.
I trust that this opinion will serve to clarify the authority of the State Board of Health to administer the hospital survey and construction program as outlined in the Hill-Burton bill.
PUBLIC HEALTH-State Board The State Board of Health may contract with Emory University for the University to provide training in children's dentistry with Federal funds allocated to the State.
April 7, 1947
Hon. T. F. Abercrombie, Director Department of Public Health
Your letter of March 24th received. You state in your letter that the United States ChildrE:n's Bureau has agreed to allocate to the Department of Public Health from a special project fund $40,000 for equipment and $7,500 for operations for the fiscal year ending June 30, 1947 and $30,000 per annum thereafter for five years for under-and post-graduate training in children's dentistry. You also state in your letter that this fund is to be paid over to Emory University in a lump sum under a contract between the Department of Health and the University to be usE:d in the training course, and asked my opinion as to whether or not the Department of Public Health has the legal authority to act as outlined in this letter.
I understand that the funds being paid to the State were appropriated by an Act of Congress approved August 14, 1935, and under Section 901, Subchapter VI, Public Health Work, USCA, p. 604, Title 42. Said Section provides
as follows: "For the purpose of assisting States, counties, health districts, and other
political subdivisions of the States in establishing and maintaining adequate public health services including the training of personnel for State and local health work, there is hereby authorized to be appropriated for each fiscal year, beginning with the fiscal year ending June 30, 1940, the sum of $11,000,000 to be used as hereinafter provided."

530

l Section 88-122, 1945 Cumulative Pocket Part of the Annotated .Code

'Provides as follows:

"The State Board is hereby authorized and empowered to cooperate with

the Public Health Service of the United States Treasury Department in estab-

lishing and maintaining adequate public health services as provided for in Title

6 of the Federal Social Security Act, Public No. 271, 74th Congressj House

Resolution 7260, approved August 14, 1935, and as said Act of .Congress may

be amended hereafter."

Section 88-121 of the Cumulative Pocket Part of the Annotated .Code

provides in part as follows:

"The State Board of Health is hereby designated as the State agency for

and shall have the power to establish and administer a program for services for
the purpose of promoting the health of mothers and children; * *' * * to co-

operate with the. Federal Government through its appropriate agen'cy or in-

strumentality in developing, extending and improving such services; and receive

and expend all funds made available to the Department by the Federal Gov-

ernment, the State or its political subdivision or from other sources for such

purposes."

.

I see .no legal reason why the Department of Public Health should not

"~<nter into a contract with Emory University, the expenses of which are to be

paid by the Federal Government as outlined in your letter.

PUBLIC HEALTH-State Board
:., (1) The State Board of Health has the authority to make reasonable rules and'regulations regarding the quarantine and control of communicable tuberculosis.
(2) Violation of a quarantine regulation of the State Board of Health is a misdemeanor.

July 8, 1947

lion. T. F. Abercrombie, Director

:Department of Public Health

I am pleased to acknowledge your letter of July 7th, in which you ask that

we advise concerning the authority of the State Board of Health in gov-

erning the quarantine and control of communicable tuberculosis. You state:

"The procedure has been, upon the recommendation of the local board of

;health, local commissioner of health, or a physician, for the judge of the city, cpunty or superior court to issue a quarantine order whereby the recal~itrant

P.atient is to be confined to the Battey State Hospital until released by the

superintendent as being no longer a menace to the public as a spreader of tu-

berculosis."



The powers and duties of the State Board of Health are prescribed by

S6ction 88-112 of the Code as follows:

"The State Board of Health shall have supervision of all matters relating tp: the preservation of the life and health of the people. It shall have supreme

~uthority in matters of quarantine, a,nd may declare and enforce quarantine

.when deemed nec6ssary. It shall make and enforce reasonable orders or regula-

tions for the prevention of the spread of contagious or infectious diseases.... "

Section 88-117 of the Code provides as follows:

"The Board shall have authority to make such rules and regulations as are

531

necessary to carry into effect the scope and purpose of this law, an:d espE:cially such reasonable rules a~d regulations for the establishment, maintenance, and

enforcement of quarantme regulations as the Board in its discretion may deem necessary, not in conflict with the laws o:j; the State."

Tht' above statutes clearly prescribe the authority of the State Board of

Health over matters of quarantine, and grant plenary power to the Board to

make reasonable rules and regulations to effectively carry out the purpose and intent of the quarantine law.

In pursuance of the above authority, the State Board of Health on No-

vember 14, 1943, promulgated a rule and regulation which provides the

following:



"L .Any person suffering with tuberculosis in a communicable stage or condition who refusE:s to obey instructions for the control of tulie~culosis. of

any public health officer, State, County or Municipal, or the rules and regu-

lations of any hospital or sanatorium wherein he or she is a patient, shall be

forcibly quarantined or isolated in such place, quarters, or institutions meeting

the approval of either the State, County or Municipal Departments. of Public

Health."



"2. Any person reasonably suspected of having tuberculosis in a com-
municable stage or condition shall, promptly upon notice from thE; State or local health department, submit to an examination by a licensed physician of his o~
her choice or any public health officer, State, County or Municipa'i, and a diagnosis of communicable tuberculosis shall be reported to the State ~nd local de-
partments of health andshall subject such person to the provisions of paragraph
(1) of these rules and regulations."

The above rule and regulation appears to bE: clearly within the authority of

the State Board of Health, since the effect of same is to carry out the purpose

and intent of the quarantine law. If a person suffering with tuberculosis iii
a communicable stage refuses to obey the quarantine rule and regulation as

above set forth, such person may be forcibly quarantined or isolated in an in-

stitution meeting the approval of either the State, County, or Municipal depart"

ments of'public hE:alth. Since tuberculosis i:ri. a communicable stage is a public

menace, it seems to be clearly within the scope of the quarantine statutes for

the State Board of Health to forcibly quarantine the patient. Not only does

this b'enefit:and protect the public, but it is likewise beneficial to the diseased

person. While we recognize the fact that it is not a crime to have tuberculosis

in a communicable stage, nevertheless a crime may be subsequently committed

if the patiE:nt refuses proper treatment as defined by the rules andregulations

promulgated by the State Board of Health as above set forth.





It seems that the public, under the above rule and regulation, has 'two alternatives when a patient with communicable tuberculosis refuses proper treatment, i. e., first, the officers of the institution where the rE:calcitrant patient is interned may forcibly retain the ill personuntil the disease has been controlled to such an extent that the public will no longer be endangered thereby. SE:condly, the officers of the institution would be authorized to bring charges against thli recalcitrant patient in some court of competent jurisdiction, and the court could upon finding the patient guilty of violating the regulation of the State Board cf Health, scnteonce the patient back to said institution to serve punish-
ment as for a misdemeanor. Section 88-9916 provides as follows:

532
"Any person who shall violate any of the provtstons of Chapter 88-5 or any lawful rule or regulation made by the State Board of Health pursuant to the authority therein granted or pursuant to the authority granted by any of the statute laws, or who shall fail or refuse to obey any lawful order issued by any State, county, or municipal health officer pursuant to the authority granted in said law or any other law or regulations prescribed thereunder, shall be guilty of a misdemeanor." (Emphasis supplied)
The above Code Section appears to grant ample authority to the judiciary to impose misdemeanor punishment upon any recalcitrant patient who has communicable tuberculosis and refuses to obey properly promulgated rules and regulations passed in pursuance of the quarantine laws of this State. A crime is committed when tht patient refuses to obey the quarantine laws or rules and regulations properly promulgated thereunder in order that the health and general welfare of the public may be safe-guarded and protected. Of course before a patient could be restrained, it would be necessary to establish the fact that such patient had communicable tuberculosis and was being h:ld under a proper :>rder of a public health official, and that such person refused to obey instructions for the control of this disease.
PUBLIC HEALTH-State Board
A patient at Battey State Hospital may, when his mental condition warrants, be transferred to the Milledgeville State Hospital by agreement betw~n the State Departm:nt of Public Health and the State Department of Public Welfare, or may be committed under the procedure set out in Code Chapter 49-6.
August 6, 1947 Hon. T. F. Abercrombie, Director Department of Public Health
I am pleased to acknowledge your letter of July 31st, in which you seek my advice as to how patients may be transferred from the Battey State Hospital to the State Hospital in Milledgeville when the patients have developed mental conditions warranting such a change.
Section 35-202 of the Code provides: "Lunatics, epileptics, idiots, and demented inebriates may become inmatfos of the hospital and shall be admitted to, and discharged from, the hospital under such rules and regulations as the Board of Control shall prescribe." The authority contained in the above provision has subsequently been transferred to the State D:partment of Public Welfare. Section 99-413 of the State Department of Welfare Act provides as follows: "The State Department shall administer or supervise all mental hygiene work, including the operation of all State institutions for the care of mentally ill or feeble-minded pforsons; and of noninstitutional care for this group." It would seem that your Department and the Director of the State Department of Public Welfare would be in a position to work out some agreement for the transfer of such demented patients as you may agree would be proper. The .State Department of Public Welfare of course is authoriz:d to make its own rules and regulations in reference to the admission of such persons. I also direct your attention to Chapter 24-19 of the Code wherein the ordinaries of the various counties are given jurisdiction over the issuing of

533
commissions of lunacy. The procedure to be follow(od in these cases is set forth in Chapter 4_9-6 of th~ _Code. It would hardly be worthwhile for me to quote all of these vanous provisions of law to you unless there is some specific question you have in mind in reference to this particular procedure. ~t is. my opinion. that. either of the above methods are available to you, chat Is, either by dealmg directly with the State Department of Public Welfare provided their rules and regulations will permit the reception of such patients: or secondly, by following the procedure for obtaining a commission of lunacy from the ordinary of the county of the r(osidence of the patient.
PUBLIC HEALTH-Vital Statistics The Act of 1945, pp. 236-248, providing a comprehensive vital statistics law, repealed existing laws, and amendments thereto, pertaining to the registration of births of adopted children.
March 5, 1946 Hon. T. F. Abercrombie, Director Department of Public Health
This will acknowledge your letter of February 27, which reads in part as follows:
"The 1945 Gem.ral Assembly passed two sections pertaining to the registration of births of adopted children. It has been our feeling that the law first passed is invalid since it is an amendment to a section specifically repealed by the subsequent law."
You further ask my advice as to whether you are correct in this assumption. Sub-section 2, of Section 14 of the Act approved March 27, 1941 (Ga. L. 1941, pp. 300-307), revising the adoption laws of this State, was amended by an Act approved March 20, 1943, so as to require the Department of Public Health to issue a certificate of birth showing the birthplace of the child to be the place of residence of the parents by adoption, or the residence of the child (Ga. L. 1943, p. 420). Section 14 of the 1941 Act referred to, as amended by the Act of 1943, was amended by an Act approved February 12, 1945 (Ga. L. 1945, p. 612) by adding a new sub-section, so as to provide that adopting parents of a child adopted prior to 1941 may obtain a birth certificate for such
adopted child, etc. An Act was passed by the General Assembly and approved on March 8,
1945, to provide a complete and comprehensive vital statistics law for Georgia. Section 1 of said act reads as follows:
"Section 1. The object and purpose of this Act is to make and provide a complete and comprehensive Vital Statistics Law for the State of Georgia and to repeal all laws or parts of laws in conflict herewith to expressly repeal Chapter 88-11 of the Code of Georgia, the same pertaining to 'Vital Statistics;' to expressly repeal an Act entitled "Adopted Children-Birth Certificates" approved March 20, 1943; to expressly repeal subsection 2 of Section 14 of an Act approved March 27, 1941 (Ga. L. 1941, pp. 300-310); to repeal any law
or laws in conflict with this Act." This Section conforms with the purposes of the Act as expressed in the
Title, and the Act also carries a general repealing clause. The first rule of construction is. to determine the intention of the Legisla-
ture. I think the intention of the Legislature in this instance is clear. Under

534

Section 10 of the Act approved March 8, 1945, full a:rid complete provlSlon is

made" for filing of adoption proceedings and the issuing of birth: certificates

of adopted persons and for delayed birth certificates, where no birth certificllte

is found to be on file for the adopted person, as provided "in said section. Sub-

section 2, of Section 14, of the Act of 1941, approved March 27, 1941, as
am'ended by the Act of 1943, is expressly repealed by Section r 'of the .Act

approved March 8, 1945. The first paragraph of Section 14 of the"Act of 19"41

relates purely to adoption and certain copies and reports to be sent to the

Department of Public Welfare and has no application to the laws of vital

statistics. The Act of February 12, 1945, even though not expressly repealed,

could not be effective after the section upon which it was dependent has been
expressly repealed, and the legislative intent was to provide a complete :ind

comprehensive vital statistics law.

'

Therefore, it is my opinion, that the Act approved February 12, 1945 was

repealed by the Act approved March 8, 1945, and that Section 10 thereof, as

relates to adoptions, is the law to be administered and enforced by the Division

of Vital Statistics, in connection with the other provisions of th~. Act.

PUBLIC HEALTH-Vital Statistics

The Director of the State Department of Public Health appoints the local

registrars of vital statistics who shall be justices of the pea,d_e, ex-officio

justices, or any persons selected by the Director.

March 6, 1946

Hon. Ellis Arnall

Governor of Georgia

This will acknowledge your letter of March 4, in which you ask my opinion

as to whether you can appoint Registrars of Births and Deaths, or under ,.;hat

official this authority is vested and if a J.P. has the right toserve.

' An a<;t to provide a complete and comprehens'ive vital statistics law "for

the State of Georgia was approved on March 8, 1945 (Ga. L. i945, p. 236).

This Act provides that the State Board of Health shall establish a Division of
Vital Statistics. The "Director" as used in said Act is defined t~ mean .the

Director of the Department of Public Health, and the "Board" as used therein

means State Board of Health. The Act further provides, in Sections 5 and 6

thereof, as follows:

"Section 5. Registration Districts. The Board shall divide the State from

time to time into registration districts which shall conform to political sub-

divisions, or combinations thereof, or of parts thereof. Any city with an

organized Health Department shall be considered a political" subdivision for

purposes of registration of vital statistics.



"Section 6. Local Registrars and Deputies. The Director shall appoint

registrars. A local registrar shall be Justice of the Peace, or Ex-officio Justice,

or any person selected by the Director. A local registrar, subJect to approval

of the Director, shall appoint a deputy or deputies. The local registrar shall

immediately report to the Department" violations of this Act or the regulations

of the Board."



It is, therefore, my opinion that, under the law,. registrars shall be ap-

pointed by the Director of the Department of Public Health and that a lo"cal

registrar shaH"-be a Justice of the Peace, or Ex-officio Justice, orimy person

seleCted by the Director.



535

PUBLIC OFFICERS-Public Funds (Unofficial)

, ,

~ A public officer intrustE:d with public funds is absolutely liable for losses,

. c .~,.except through act of God or the public enemy.

.'

Hon. A. B. Robertson

May_ ~,2, 1946

Assistant Adjuster

The Travelers

Atlanta 3, Georgia

I am pleased to acknowledge your letter of May 18th in which you re-

quest an unofficial opinion on the following question:

"Would a tax collector, or any public official of the State of Georgia,

whose duties require him to have in his possession public moneys, be personally

responsible for the loss of such moneys if thE:y should be stolen, lost, or de-

stroyed while in his possession, and without negligence on the part of the

public official?"

The general rule of liability for a public officer in charge of public funds

is stated in 43 Am. Jur. 118, at Section 314, as follows:

"A public officer is not as a rule relieved from liability for the loss of

public moneys in his charge where the loss is due to fire, burglary, theft, or

embezzlement by subordinates, however careful and prudent he may. have

been. But the act of a public enE:my occasioning a loss of funds in the custody

of an officer is generally accepted as a valid excuse; it being in fact almost the

sole excuse accepted by the courts which have adopted the rule of absolute

liability.. Where the liability of an officer is considered that of a bailee, it

has been held that an officE:r is not personally liable for funds which have been

forcibly taken from him by robbers."

:The Court of Appeals of Georgia in the case of American Surety Company

of New York v. NeSmith et al., 49 Ga. App. 40, held as follows:

"It is one of the duties of a. public official intrusted with public moneys

to keep them safely; and this duty of safe custody must be performed at the

peril .of the official. In effect, according to the weight of authority, .a public

officer is an insurer of public funds lawfully in his possE:ssion, and therefore

liable for losses .which occur without his fault. He is answerable in all events.

The liability is absolute, admitting of no excuse, except perhaps the act o:fl God

or the public enemy. This standard of responsibility is based on public poljcy.

By: the weight of authority a public officer is not, like a trustee or an agent,

the mere bailee or custodian of the money in his hands, but he is called on to

account according to a much more rigorous standard of rE:sponsibility. Smythe

v. U. S., 188 U. S. 156 (23 Sup. Ct. 279, 47 L. ed. 425) et seq."

The above case was quoted with approval in the later case of Landrum

et al. v. Thomas et al., 52 Ga. App. 257. . I believe that you will find that the above decisions answer your inquiry.

536
PUBLIC OFFICERS-Reports The Act of 1912, pp. 109-111, reqmrmg officers on a fee basis to file quarterly itemized statements with the Comptroller General and requiring him to have such information available at the next session of the General Assembly was of temporary duration and is no longer of force.
Octobc,r 20, 1947 Hon. M. E. Thompson Acting Governor
I am pleased to acknowledge your recent request for an opmwn on the question of whether the Act approved August 17, 1912, (Ga. L. 1912, pp. 109111) as amended by an Act approved March 24, 1933, (Ga. L. 1933, pp. 97-98) as codified in the Code of Georgia as Section 89-703 to 89-706 inclusive, is still of force and effect in this State, or whether said statutes were of a temporary nature and have expired by virtue of the express language of the preamble and Section 3 of the Act of 1912.
The Act of 1912 in general requirea all officers, except justices of the peace who received fees and compensation other than salaries, to kec,p a daily account of such receipts and quarterly to file such itemized statements with the Comptroller-General. In order to determine whether or not this Act is still the law of our State, it becomes necessary to examine each provision thereof in order to ascertain the legislative intendment.
The cardinal rule in th6 construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. (Gazan v. Heery, 183 Ga. 30.) So, the question naturally arises as to just what the Legislature intended in the passage of the above Act.
In Comer v. The State, 103 Ga. 69, the following rule is stated: "For the purpose of construing and ascertaining the meaning of an Act passed by the General Assembly, and, after the date of its enactment, incorporat6d in the present Code of this State, it is legitimate and proper to examine and consider the original act and its title; and whatever result would follow where the terms of a code section vary materially from those of the act from which it was codified, if such a section is in substantially the same words as those used in the act from which it was taken, the language employed in such section should receive the same construction as would be given thereto upon a construction of the act itsc,lf." To the same effect, see Eason v. Morrison, 181 Ga. 322, wherein it is held that in case doubt exists as to the meaning of the codified provision of law, it is proper to examine the title of the Act as an aid in statutory construction. Section 89-706 of the Code which is a part of the 1912 Act above referred to, provides as follows: "The Comptroller-General shall preserve all of said statements, shall tabulate same so as to give all information contemplated under this Chaptr,r, and shall have all such information available at the next session of ~he General Assembly." (Emphasis supplied). (Ga. L. 1912, p. 109). The above Section of the codified Act does leave some doubt as to the permanency of this law. Are the words "available at the next session of the General Assembly" to be limited to the following session of the Legislature, or is it reasonable, to say that these words apply to all previous sessions until the Act is expressly repealed? As an aid to construction in answering this ambiguity, it is necessary for us to thoroughly and carefully examine the Act of

537
1912, together with its preamble. It is to be presumed that the codifiers did not intend to change the original law, but rather intended to state the existing law and make the same a part of the Code. See, Maddox v. First National Bank, 191 Ga. 109. In The Mechanics' Bank v. Heard, 37 Ga. 401, at page 413, it was held in reference to the Code of 1863 that the codifiers had no authority to originate new matter for legislative sanction, and one asserting that they went beyond their commission must prove such contention.
An examination of the title of the Act of 1912 reveals the following pertinent provisions:
"Whereas, it is desirable to place all Stat~ and county officers upon a salary; and, whereas, it is practically impossible to pass any general law looking to this end without knowing what compensation officers are now receiving. . . ."
The above language clearly shows that the Legislature was requiring State and county officers who received fees and compensation other than salaries, to make itemized statements thereof for the purpose of giving information to the Legislature in order that some general bill placing such officers upon a salary basis might be considHed and adopted. The above preamble further makes it known that such a salary bill could not be enacted without the Legislature "knowing what compensation officers are now receiving." It is significant that the words "now receiving" are employed which can only denote the present tense. The Legislature apparently at the time of the passage of this Act, was uninterested in the amount of compensation these officers might be rec~iving at some future date, but their entire concern was with the compensation prestntly received by such officers. This interpretation of the preamble is consistent with Section 3 of the Act which provides:
"Be It Further Enacted, that the Comptroller-General of the State shall preserve all of said statements, shall tabulate same so as to give all information contemplated under this Act, and have all such information available at the next session of the General Assembly." (Emphasis supplied).
The very fact that the Legislature required such information to be available at its "next session" seems to be in keeping with the preamble to the Act which shows the purpose of the law to provide information on the compensa-
tion "officers are now rtceiving." It would appear to be logical as well as in keeping with the above stat111.te
to hold. that the legislative intendment was to require the State and county officers referred to in the Act, to file such sworn itemized statements with the Comptroller-General quarterly until the convening of th~ next session of the General Assembly during the following year of 1913. At this time the General Assembly would have before it sufficient information in order to determine whether or not these officers should be placed upon a salary, or whether it would be b~tter to continue them on a fee basis. Apparently, these statements were filed by all officers during this period, and the Legislature received such information from the Comptroller-General as required by the Act.
It seems to me that the above interpretation of the Act of 1912 accords a common-sense construction to the statute. One of the most basic and elementary rules of construction known to legal jurisprudence is that where a statute has over a long p~riod of time received a certain construction which the Legislature has knowingly acquiesced in, such a construction will be accorded great weight by the judiciary. This rule was recognized as early as 1850 by

538

-our Supreme Court when it held in the case of Harrison v. McHenry, 9 Ga. 164, at p. 171, as follows:
.. _ "When a statute has;, by. a long series of decisions, received a construction which the people have acted upon1 and in which the Legislature has acquiesced, we do not feoel at liberty, not feeling it to be an imperious obligation, to disturb that construction-more especially in cases where, as in this, serious injury would result to citizens who have rights originating under that construction. We leave the error for .the consideration of the Legislature."

In keeping with the above rule of law, we must come to the conclusion that since the Legislature has for more than a quarter of a century expressly known that such officers were not filing these stateoments with the ComptrollerGeneral, and that the latter state officer in turn was not filing such statements with the General Assembly, such Act did not require these things to be done after the session of 1913. rt must be presumed that the Legislature had knowledge of the fact that the Comptroller-General had not been filing these statements during this long period of time. This being true, it must necessarily 'follow that the Legislature itself acquiesced in the interpretation placed upon this Act by the various State and county officials and the Comptroller-General.

In addition to the legislative interpretation of the Act of 1912, we are

also strengthened by the administrative interpretation placed upon this Act

by the Comptroller-General and a multitude of State and county officials.

None of these officers by their acts construed the statute of 1912 to be effec-

tive during this long period of time. It is my information received from the

Comptroller-General and othtrs that only county officers from less than three

'or four counties of this State have been complying with this law. This means

that the overwhelming majo:dty of such county officials as well as the Comp-

troller-General himself, have construed and interpreted the law to be inopera-

tive at the present. time.



In making the above ruling, we are not unaware of the well-known legal principle which holds that leg-islative and administrative interpretation of an Act cannot change the clear import of the law under consideration. However, here we are ruling that the Act is ambiguous and therefore, legislative and administrative construction should be given considerable weoight by the judiciary.

There is also another rule of construction which 'Ye believe should be given consideration, and that is, the fact that the Act of 1912, Section 4, makes it a misdemeanor for any officer, knowingly and willfully, to refuse to keep these statements or refuse to file quarterly statements with the ComptrollerGeneral. Section 4 contains a harsh penalty, and would subject a multitude of public servants of this State to criminal prosecution should the Act be interpreted contrary to this opinion. It would indeed work an extreme hardship on the many faithful and diligent officers of this State to hold that they are subject to criminal prosecution after permitting the law to lie dormant for more than a quarter of a century. This would certainly work an injustice on these public servants, and could never have been intended by the Legislature to be the active and effective law of this State at the time this opinion is being written. As to the criminal feature of the Act of 1912, we direct your attention to the case of Waldr<>up v. The State, 198 Ga. 144, where our Supreme Court recognizes the rule that criminal statutes must be strictly construed against the State. This simply means that no one should be prosecuted under a statute such as Section 4 of the Act of 1912 now under consideration, where

539

it is extremely doubtful as to whether the Legislature intended the Act to be

of a temporary nature. The equity and justice of the question now under

investigation requires me to hold that the Legislature never :intended for the Act of 1912 to become a permanent law, but that such wa~ 'to be only of a

temporary status and to expire with the accomplishment of its 'designated pu:r-

pose-that is, When the desired information was made available to the General

Assembly at its next session in the year 1913.



'Th(> amendment of 1933 (Ga. L. 1933, p. 97) and the fact that the Act of

1912 was incorporated in the Code of 1933, does not change the general rule

of statutory construction together. with my opinion above stated in reference

to this matter. This is true for the reason that if the Act of 1912 served its

purpose as we believe it did, and expired at the next session''6f thE, ceneral

Assembly in 1913, there would be no existing law to support the 'amendment

of 1933. It is well recognized by the decisions of the appellate courts of this

State that an amendatory act, to be valid, must relate to an existing statute

and not to on; that has been repealed or otherwise non-existent. See, Lampkin

v. Pike, 115 Ga. 827.

In view of the foregoing decisions of our appellate courts, together with the many rules of statuto-~y 'constniction referred to herein, I ~m of the very

definite opinion that the Act approved August 17, 1912, is no longer the law

of this State; and that state and county officials who receive fe.es and compen-

sation other than salary, are not required to fil(> itemized sworn statements of such fees and compensation quarterly with the Comptroller~General. It would

therefore follow that the Comptroller-General iikewise is no longer .required to

have such information available for the General Assembly.

If we have misconstrued the legislative intendmentherein, it will be an easy matter for the Legislature at its ~ext session to direct such tifficers to

make this information available.

PUBLIC PROPERTY-Arrests The night watchman for the State Tuberculosis Sanatorium at Alto should be deputized by the sheriffs of the two counties in which the. prop_erty is located in order to have the power to arrest for offenses c.ommitted thereon.
November 28, 1945
Dr. Rufus F. Payne, Superintendent'
State Tuberculosis Sanatorium Alto, Georgia
Your letter of November 22nd received. You request that I advise what procedure should be followed in having your night watchman deputized so as to authorize him to make arrests of persons violating laws on State property.
I have checked the statutes of the State and so far I have been unable to find any procedure outlined for empowering your night watchman to make a_rrests. The night watchmen employed to supervise the State property locate? m Atlanta are empowered to make arrests under certain rulesand :egulatwns prescribedCby the Governor. This authority is_ auth~rize_d by s_ec~lOn 91.-107 of the Code of 1933, but my construction of this sec~10~ IS that It ~~ restricted to watchmen employed by the keeper of the public bmldmgs located m Atlanta, since .this section requires that when an arrest is made the offender ~hall. be conducted to the police headquarters in Atlanta. Of course a person vwlatmg

540
any law in either of the counties where Alto is located could not be tried in any court in Fulton County.
Section 24-2811 of the Code gives sheriffs power to appoint deputies, and the deputies would qualify by giving bond. They would be authorized to make arrests and deliver the offE:nder to the sheriff of the county where the crime was committed. Section 26-4901 of the Code requires such deputies to be citizens of the State.
Since the State property is located in two counties, you would be confronted with the question of whether or not the sheriff in each of the counties would appoint the same person as his deputy. I would suggest that you take the mattu up with the sheriffs of the two counties and see if some satisfactory arrangement can not be worked out. If you can not work out a satisfactory arrangement, it would possibly be necessary to amend Code Section 91-107 so that the same would apply to watchmen employed to guard State property in any county.
PUBLIC PROPERTY-Governor's Mansion The Governor may not lease or rent the Governor's Mansion or any part thereof. December 18, 1945
Hon. Ellis Arnall Governor of Georgia
In your letter dated December 15, you state that in order to cooperate in the efforts being made to house veterans and their families, Mrs. Arnall and you would like to rent or utilize some of the space at the Executive Mansion for some veteran and his family; and you request my official opinion on whether or not this is legally possible.
After an exhaustive search, I am unable to find any provision of law which authorizes thE: Governor to rent or lease the Executive Mansion or any part thereof.
The Governor's Mansion and the furnishings therein are property of the State; and the mansion is designated by law as the legal place of residence of the Governor, which is supported by appropriations to the Executive Department. All maintenance costs and costs of servants' hire, food, supplies, etc., are paid out of this appropriation.
The power of the State in respect to its property rights is vested in the Legislature, and the Legislature alone can exercise the power necessary to the enjoyment and protection of those rights by the enactment of statutes for such purposes. Since the General Assembly has specifically authorized the lease of some property and has defined the powers of the Governor with reference to the other, and has not authorized the lease of the Governor's Mansion or any part thereof, it clearly appears that it was not the intention of the General Assembly that the Governor's Mansion or any part thereof should be rented or leased or entered in the field of competition with privately owned property.
While I share with you the desire for the State Government to use all of its facilitiE:s in our efforts to alleviate the deplorable situation in which many of our servicemen find themselves in their efforts to acquire living quarters, I am nevertheless constrained to advise you that, as a matter of law, you are without authority to lease or rent the Executive Mansion or any part thereof to anyone or for any purpose.

541
Becau~e of our mutual interest in the present plight of our servicemen, who are ';Ithout homes; may I suggest that the entire matter be brought to the attention of the General Assembly at its January session to ascertain what the State Government might do to assist in relieving this situation over and beyond what is already being done through your own efforts.

PUBLIC PROPERTY-Henry Grady Hotel
The Governor may not require the management of the Henry Grady Hotel to give veterans priority in the reservation of rooms.

Hon. Ellis Arnall Governor of Georgia

December 18, 1945

In your letter dated December 15th, you state:

"I would like to have your official opinion as to whether or not there is any way we can legally require the Henry Grady Hotel to give veterans and their families priority in the reservation of rooms due to the fact that this is a State property."

I am of the very definite opinion that you, as Governor, cannot legally require the management of the Henry Grady Hotel to give veterans and their families priority in the reservation of rooms.

The lease contract of the Henry Grady Hotel property executed by the Governor and the State Properties Commission under authority of the Act of the General Assembly of 1921, gives possession of the property to the lessees, provided that upon failure to pay the rentals or make certain improvements thereon within the time prescribed in the lease, or to keep up and repair said property, or to comply with other stipulations contained therein upon thirty days notice, the contract may be abrogated and the property revert to the State. Unless and until the terms and conditions of the contract are breached by the lessees, neither you nor the Legislature can interfere with the management and control of the property. Both the Federal and the State Constitutions prohibit the enactment of any laws impairing legal contracts. Any act on the part of the Governor or the Legislature affecting the management of the hotel property which impairs the contract between the State through its proper agencies
would be constitutionally antagonistic.

I find no provisions in the contract between the lessees of the Henry Grady Hotel and the State which requires the management to give priority to any person or persons in providing for room reservations. Therefore, since the terms of the lease contract constitute the law as to the management of the property and no violations of the terms appear to be evident for the purpose of this opinion, the State cannot legally compel the management to give priority to veterans and their families in room reservation arrangements.

Since I share with you in the desire to do whatever we can through the State government to alleviate the housing problem confronting our returning servicemen and their families, may I suggest that you as Governor, request the management of the hotel property to grant priority to these veterans and their families whenever and wherever possible. There is no legal prohibition against you making such a request, but you cannot legally compel the man-

agement to comply with your request.

542

PUBLIC PROPERTY.:-Henry Grady Hotel The lessee of the Henry Grady Hotel, and not the State, may grant the right to op~ra,te a taxi stand in front of the leasehold premises.

April 23, 1947

Hon. Phil M. Landrum, Executive Secretary

Ex~::cutive Department

This will acknowledge your letter of April 21st, in which you request

information. concerning the right of the Governor to grant to the Atlanta

Veterans Transportation Company the right to operate a taxi stand in front of

the Henry Grady Hotel property.

This property is known as the "Mansion Property", and was leased by the

State to the present occupants many years ago. The present least expires on

May 31, 1972, although in 1939 the Legislature authorized the Western and

Atlantic Railroad Commission to consider the negotiation of a further lease

not in excess of. twenty years from May 31, 1972. The record does not disclose

however, that the additional lc;;ase was ever entered into, since Section 5 (a) ~f the Act provided. that any contract made by the said Commission "shall be s~bmitted to th.e General Assembly meeting next after the execution of said

<;ontract, for approval or disapproval, and unless approved by the General

Assembly, said contract shall be void."

'' Since the property has been leased by the State for a long term of. years,

it would follow that the State would have no authority to interfere with any

agreement made by the lessee respecting a taxi stand in front of the leasehold

premises.

In State of Georgia v. Western & Atlantic RR, et al., 185 Ga. 658, our

Supreme Court held. as follows:



. ' "Under the lease contract entered into between the State of Georgia as

the owner of the Western and Atlantic Railroad, and the Nashviiie, Chatta-

nooga and St. Louis Railway, on May 11, 1917, the l~::ssee acquired a right to

the use of the underground and overhead space on the portion of the land

lying between Whitehall and Broad Streets in the City of Atlanta, constituting
a part of the right o:f way of the Western and Atlantic Railroad, with the right

to sublet any part thereof not needed for railroad purposes, without the con-

sent of the Governor."

I am therefore of the opinion that the Acting Governor is without authority

to interfere with any arrangement made by the lessee in reference to a taxi

stand in front of: the premises. This is a matter which addresses itself to the

discretion of the lessee, since under the terms of the lease, the State has

divested itself of this right during the tenure of the contract.

PUBLIC PROPERTY-Insurance The Governor has the authority to insure State property under the control of th~:: State Department of Education.
December 2, 1947 Dr. M. D. Collins Superintendent .of Schools
I wish to acknowledge your letter of November 13, in which you ask my opinion as to whether or not the State Department of Education could protect

543
its property by having the same insured. You referred to equipment at the Trade and Vocational Schools, the Academy for the Blind, and the School for the Deaf.
I find no authority for the State Department of Education to insure State pro!)E>rty at the different schools. The general supervision over State property and the protection thereof is delegated, by law, to the Governor in Code Section 91-402, which reads as follows:
"The Governor shall have general supervision over aU property of. the State, with power to make all necessary regulations for the protection thereof, when not otherwise provided for. He shall assign rooms in the capitol to all officers who are required to hold their offices then,, and, in the absence of any legislative provision, designate the purpose to which other rooms shall be applied."
From the above .it is determined that the protection of property is a matter within the duties of the Governor. Code Section 91-403 requires the Governor to insure all public buildings at on>chalf their value. Considering these two Sections, it is apparent that the Governor has authority to insure buildings under Section 91-403 and to protect the contents of the buildings by insuranc> under the provisions of Section 91-402.
It is my opinion that the property in question may be insured and that the same should be done by furnishing a list of the property and its value to the Governor with the request that thE> same be insured.

PUBLIC PROPERTY-Marsh Lands

Marsh lands owned by the State may not be leased or disposed of without

. authority from the General Assembly.



August 29, 1946

Hon. Ellis Arnal!
Governor of Georgia I am pleased to acknowledge your letter of August 28, in which you state

the following:

"Mr. Harben Daniel, President of Radio Station W.S.A.V., Savannah, Georgia, is interested in acquiring a long t>rm lease or title to a tract of l~nd

comprising about forty acres of marsh land in Chatham County.. Accordm.g

to the attached letters from Attorneys Lawrence and Stephens, title to th1s

marsh land is in the State of Georgia. The States does not use it and there

is some question as to the grant of this property to th> Bethesda Orphanage.

. "The question on which I d6sire your official opinion is-"Is ~here a~y

SSttaattieonofWfic.iSa.lA, .Vor.

,

off fo

ic r

ifaolrst,

who y acr

can enter. into es of the .mars

a h

I

alonndg

m. terqmue

lease st'wn"

?W ltsh. ucRha.daJOn

arrangement would be tremendously valuable to the State .of Georg1a smce

the marsh land in question is wild land, subject to tides, an\! is not used for any

purpose by the State." This office has made several rulings to the effect that state property can-
not b~; leased sold or otherwise disposed of without legislative authority. The only exceptio~ to this rule is stated in Section 91-804 of the Code, as follows:

"When any public property shall become unserviceable, it may be sold or

otherwise disposed of, by order of the proper authority, and an entry of the

544

same shall be made in said book, and the money received therefrom shall b!;

paid into the Treasury."

I am of the opinion that the marsh land in question cannot properly be

said to have "become unserviceable" within the purview of Section 91-804

above quoted. The cases of Dyer v. Martin, 132 Ga. 445; and Trapnell et al. v.

Candler County et al., 146 Ga. 617, in construing this law, both show that two

building sites were involved and that the old site, which was the subject of

sale, had become unserviceable, because the new site was more advantageous

to the public. In the instant case, however, the 40 acres of marsh land cannot

be said to have become anymore unserviceable today than it was on the date

th!; State originally took possession and title to same.

The correspondence attached to your letter also raises the question of

whether the State Properties Commission is empowered to lease or dispose of

this property. I am of the opinion that the authority of the Commission is

limited to those matters specifically set forth in Chapter 91-1 of the amended

Code, and that the same does not includ!; the right to lease the property now

under consideration.

The only safe and proper way to dispose of state property, when the same

has not clearly become unserviceable within the meaning of Section 91-804,

is by an act of the General Assembly. It seems that even where the applica-

bility of Section 91-804 is questionable, that it would be the wiser course to

secure legislative authority before disposing of state property. This reasoning

becomes much stronger when we consider Section 89-903, which reads as

follows:

"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 view of the above provision of law, I am of the opinion that the property

in question should not be leased or otherwise disposed of without a proper act

of the Legislature authorizing the same.



PUBLIC PROPERTY-State Capitol The Governor may not deed to the City of Atlanta a strip of the State
Capitol grounds for the purpose of widening a city stree:t.
August 25, 1947 Hon. M. E. Thompson Acting Governor
I am pleased to acknowledge your letter of August 14th, together with a communication from Honorable J. L. Richardson, Clerk of the City of Atlanta, in which he states that the general council of Atlanta on July 22, 1947, passed a resolution duly approved by Mayor Hartsfield requesting the State of Georgia to de:ed to the City of Atlanta a strip of land on Washington Street off of the Washington side of the Capitol grounds in order that Washington Street may be widened to take care of a greater flow of traffic.
You request an official ruling from me as to whether or not you would be authorized to comply with the suggestion made by the City of Atlanta.
The following Code Sections are applicable to your question: "91-804. When any public property shall become unserviceable, it may be: sold or otherwise disposed of, by order of the proper authority, and an entry

545
of the same shall be made in said book, and the money received therefrom shall be paid into the treasury."
"91-805. The 'proper authority' referred to in this Chapter is the Governor, for all officers of the State; and the county commissioners or other officers having charge of county matters, for all officers of the county."
Before you would be authorized to dispose of the property in question, it must first be determined that such property has become unserviceablu to the State. The Supreme Court of Georgia in the case of Trapnell, et al. v. Candler County, et al., 146 Ga. 617, in considering a similar question relating to the county, held as follows:
"Public property becomes unservicuable in the purview of this law, so as to empower the proper authority to sell the same, where such property cannot be beneficially or advantageously used under all the circumstances."
I also particularly call your attention to the fact that the statute states that the "public property shall become unserviceablu" which necessarily means that circumstances must have changed to such an extent that property formerly useful and beneficial to the State has now become, because of a change of circumstances, unserviceable. We could hardly say that the lawn of the State Capitol has in any sense of the word become unserviceable to the State. The lawn is just as beneficial and worth as much to the Capitol premises today as perhaps it was at the time of construction. Circumstances pertaining to the State have not changed in such a way as to make this property unserviceable, but rather it seems that traffic conditions existing in the City of Atlanta have become so congested that it would make it very advantageous to the City to have a strip of this property in order to reliuve the flow of congested traffic on Washington Street.
I am of the opinion that the property referred to has not become unserviceable within the purview of the above statute. It would therefore follow that you would not be authorized as Governor to deed a strip of this land to thu "City of Atlanta.
Realizing the merit of the request now being made by the City of Atlanta, and having personal knowledge of the congestion of traffic in front of the Capitol Building on Washington Street, it seems that this mattur should be brought to the attention of the Legislature so that this body may give due consideration to the suggestion made by the City of Atlanta.
PUBLIC PROPERTY-State Highways An easement held by the State for highway purposes is public property and may not be conveyed away by the Director of the State Highway Departmont without the authorization of the General Assembly.
November 13, 1947
Hon. John C. Beasley, Director State Highway Department
Your letter of November 7th, enclosing deed seeking to convey from the State Highway Department to L. M. Redman a part and portion of a right of way obtained from Mrs. K. M. Strong, received. You request that I advise whether or not you have the legal right to execute this convuyance on behalf
of the State Highway Department. Under Section 89-903 of the Code of 1933 it is stated that the powers of

546

all public officers are defined by law, and all persons niust take notice thereof.

The public is not estopped by the act of any officer done in the exercise of. a

power not confE>rred by law. Under Section 91-801 and 91-802 of the Code

all State officers are required to make an inventory of all public property :in

their charge and to account for same to the proper authority succeeding such

an officer.

It follows, therefore, that a public officer cannot convey State property

from the State to another person unless such officer has been given specific

authority by some act or resolution of the General Assembly.

I have been unable to find any legislation which would authorize you, as

Director of the Highway Department, to sign any deed conveying any property

owned by the State Highway. Department to another. I am not unmindful of

the fact that the deed from Mrs. Strong conveyed only a right of way easement,

and contained a provision to the effect that should the Highway Department

cease to use the right of way for highway purposes; the same would revert

back to Mrs. Strong, or possibly her successor. However, I am of the opinion

that the easement constitutes public property.

The Act of 1943, now Section 95-1620, Cumulative Pocket Part of the

Annotated 'Code, provides that the Director, when approved by a majority of

the Commission, may take off of the highway system any road heretofore

certified which does not exist, or which, if in existence is not now being used

by the travelling public, and such roads as have been 'included in some United

States Reservation and closed to travel of the public.

While this provision of the law would authorize the Department to take

off:of thesystem such roads as are therein described, it did not, in my opinion,

authorize the Director to convey a part or portion of a right of way now being

used for road purposes.



I do not believe that you would have the power or: authority to declare

ariy part of a right of way upon which there is maintained a road as unservice-

able. That right seems to be lodged with the Governor of the State when deal-

ing with State propE:rty. Sections 91-804 and 91-805 provide in substance

that when any public property of the State shall become unserviceable, it may

be sold or otherwise disposed of by order of the proper authority and the money

received therefrom paid into the Treasury. The proper authority is the Gov-

ernor for all property of the State. The courts have held that unserviceable

property is that property which cannot be beneficially or advantageously used

under all circumstances. Under these circumstances I am not certain that even

the Governor could declare a part of a right of way used in connection with

a road as being, undE:r all circumstances, such that could not be beneficially

or advantageously used by the State.

I desire to point out that even if such could be legally done, the setting

aside of a part of the right of way as unserviceable would be setting a prece-

dent by which, in the future, the Highway Department could be handicapped

in its operations. My conclusion is that you do not have the authority to sign

the deed and that such a deed could be signed only where directed by the

General Assembly by resolution or act, and where such resolution or act gave

specific authority to some officer to execute the deed.



547

P.UBLIC PROPERTY-State Highways
(1) :Vhere the St~~e owns the fee to property upon which a state highway IS loca~ed, utility co~panies may erect poles and lines on the right

of way, s;tbJect to. the dommant use of the property for highway purposes,

upon paymg reasonable compensation in an amount fixed by the Director

of the State Highway Department.



(2). Whtre the abutting property owner retains the fee to property on whi?h a Sta~e highway right of way is located, he may grant utility com-

pames .the nght to erect poles along the right of way which do not inter-

fere \nth the State's easement for highway purposes.

Hon. Ellis Arnall

November 2, 1945

Governor of Georgia;

This will acknowledge your letter of October 3, along with Mr. Clay's

letter. of: September 29; in which you request an opinion on tht following

question:

"Are the Utility Companies due to pay the State for the use of ourprop-

erty for their pole lines? If so, how do we go about collecting the money?"

I assume that you desire this opinion to dtal with the question of State

highway rights of way since you forwardedMr. Clay's letter with your request

for .an opinion.

In order to answer your question we must consider separately cases in which. the State owns the fee in the property upon which the State highw~y

is located and cases where it simply has an easement in such property for high-

way purposes with the fee remaining in the abutting proptrty owners. It is

well settled that the State may own and does own either an easement in prop

erty for highway purposes or the fee in such property. State Highway Depart

ment v, H. G. Hastings Co., 187 Ga. 204 (5); Calfee v. Jones, 54 Ga, App.

481 (2).

Where the State has only an E:asement over property for highway purposes

a!Jd the feeremains in the abutting property owner, the owner of the fee has

the right to continue to use the land in any manner not inconsistent with the

public right or which does not impair the enjoyment of the easement. Donalson

v . Georgia Power & Light Co., 175 Ga. 462 (2); Adair v. City of Atlan:,ta, 124

Ga. 288 (2). The right of the owner of the fee or one acquiring a right under him to

th.e use of such property, is, of course, subject to the dominant easement of

the public and may not be exercised in any manner which will impair the. en

joyment of the easement. Thus it is necessary for the Director of the State

Highway Department, who is in charge of the State Highway DE:partment; 'to

make reasonable rules and regulations governing the use of such property,

including the manner of constructing the lines and poles and the use of the

same, as are necessary to protect the enjoyment of the easement and the safety

of the traveling public. It is my opinion .that where the State Highway Department has only an

easement in a highway right of way, the State Highway Department cannot

charge utility companies for the use of said right of way to construct their

lines and poles, but in the event the utility company has been granted the

right by the fee owner of such property, it may, insofar as the State Highway

Department is concerned, construct its lines and poles on said right of way if

548
the proper authority shall dete:rmine that the construction of such lines and poles will not be inconsistent with the public easement or adversely effect the safety of the traveling public. The proper authority to determine under what condition the lines and poles may be constructed on the highway right of way where the State holds an easeme:nt for highway purposes, or the proper authority to prohibit such use if it be determined that the intended use would interfere with the public easement or adversely effect the safe:ty of the traveling public, would be the Director of the State Highway Department of Georgia as he is vest~d with the management and control of the: State Highway Department and has supervision over the system of State aid roads.
Where the fee to the State highway right of way upon which the State highway is located is in the State, it is my opinion that the Legislature has by necessary implication of law granted to utility companie:s the permission to use the State highway rights of way of this State for construction of their lines and poles subject to the dominant use of such property for highway purposes, and that the Legislature has by implication of law granted such authority to the utility companies upon making due compensation for said right.
The State Highway Director has the authority to prohibit the use of the State highway rights of way by the utility companies when he be:lieves that such construction of their poles and lines would constitute a hazard to the safety of the traveling public or would interfere with the State's enjoyme:nt of the property in question. If, however, the State Highway Director should determine to grant such permit, he may also make reasonable rules and regulations governing the construction and use by the utility companies of the State highway rights of way, and may charge them a rental for said use, to be determined by the Director, when the fee is in the State. The Director in determining the amount charged for the rental should take into consideration the public benefits derived from the installation or construction of the lines and poles of the utility companies.
It is also my opinion that the State could not alter any agreement in existence between the State Highway Department and the u~ility companies giving them the right to use highway rights of way for lines and poles, but in the future the State Highway Department can compel the utility companies to pay for the use of its highway rights of way for the construction of the utility companies' lines and poles.
With refere:nce to State owned property other than the State highway rights of way, it will be necessary to know the particular property involved since in tietermining whether or not authority arises by necessary implication in a given case, the legislative intent is to be arrived at by applying the statute to the subject matter.
I base my conclusions upon the cases herein cited and the following Code Sections and cases:
Code Section 104-205; Code Section 36-803; Code Section 36-808; Code Section 36-809; Code Section 36-202; City Council of Augusta v. Ga. RR & Banking Co., 98 Ga. 161; Town of Poulan v. A. C. L. Railroad Co., 123 Ga. 605; Ga. Nor:hern Ry. Co. v. Moultrie, 163 Ga. 513; Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656; Wellmaker v. Terrell, 3 Ga. App. 791; Hanbury et al. v. Woodward Lumber Co., 98 Ga. 54 ( 1) ; Davis v. The East Tenn. Va. & Ga. Ry Co., 87 Ga. 605.

549

PUBLIC PROPERTY-Unserviceable The Governor may grant an easement to a county for road purposes over State property which has become unstrviceable.

Hon. M. E. Thompson Acting Governor

August 26, 1947

This will acknowledge your letter of August 25th, together with enclosed correspondence from Hon. A. V. Neal, Commissioner of Roads and Revenues of Bartow County. Mr. Neal states that Bartow County is planning to change the Kingston-Adairsville public road just North of Halls Station in order to eliminate two dangerous grade: crossings. He further states that the State owns a small tract of land adjoining the railroad right-of-way and this property has not been used by the State for some fifty years or more, and in his opinion will never again be serviceable to the State. Bartow County requests permission to use a designated strip of this land in order to eliminate the two dangerous grade crossings referred to by Mr. Neal.
You request that I advise you officially as to your authority to comply with the request made by the County Commissioner of Bartow County for and on behalf of the county. The statutes applicable to your inquiry are as follows:
"91-804. When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the treasury."
"91-805. The 'proper authority' referred to in this Chapter is the Governor, for all officers of the State; and the county commissioners or other officers having charge of county matters, for all officers of the county."
From the facts presented in Mr. Neal's letter, it appears that the State has not used the property in question for more than fifty years. At that time I understand the property was used for the purpose of storing wood to be used in the wood-burning locomotives operated over this territory by the State. It would be reasonable to hold that the: State will never again use this property
for such a purpose.
I am of the opinion under the facts presented that you would be authorized to determine that the property in question has become unserviceable, that is, provided you are in agreement with the facts presented by Mr. Neal in his attached communication. In this event, I would suggest that the county be granted an easement over this property with the understanding that such easement will terminate if and when the county should fail to use the property

for a public road.

550
PUBLIC PROPERTY-Warm Springs Memorial (1) Employees of the F. D. R. Warm Springs Memorial Commission are under the Workmen's Compensation Act. (2) The F. D. R. Warm Springs Memorial Commission may not obtain public liability insurance as it is an agency of the State and not liable for its torts.
August 25, 1947 Hon. Lee S. Trimble Secretary-Treasurer F. D. R. Warm Springs Memorial Commission
You request in your letter of August 13 an opmwn as to the advisability of the Commission carrying Workmen's Compensation and Public Liability Insurance.
I am of the opinion that the Memorial Commission which was created by an Act of the Legislaturt, approved January 31, 1946, (Ga. L. 1946, pp. 31-34), is not a body corporate and politic and a public corporation, but is a department of the State Government, performing an essential governmental function. The employees of the Commission are State employees. By Resolution of the Legislature approved February 23, 1945, (Ga. L. 1945, pp. 1202-1204), entitled "State Employees Workmen's Compensation," all State employees were placed under tht Workmen's Compensatioi:J. Act, the Resolution providing that all claims by State employees are to be paid out of appropriations to the several departments, once they are properly established. Therefore, it is not necessary that you carry Workmen's Compensation Insurance.
The right and authority of the Governor to insure State property is covered by Section 91-402 of the Codt of 1933, which reads as follows:
"The Governor shall have general supervision over all property of the State, with power to make all necessary regulations for the protection thereof, when not otherwise provided for."
The authority given in the above-quoted Section is broad enough to give the Governor powtr to insure property for the protection of the State. There being no specific authority in the Act creating the Commission providing for Public Liability Insurance, I do not believe the section is broad enough to give the right or authority to insure property for the protection of others. Since the State is not liable to suit without its consent, and is not liable for the torts of its officers, agents and employees, unless made so by law, there does not appear to be any l~Cgal duty resting on the State to insure its operations for protection of others. In Ramsey v. Hamilton, 181 Ga. 365, it is held that the State cannot be sued without its consent. In Tounsel v. State Highway Department, 180 Ga. 112, the court holds that the State is not. liable for torts unless made so by statute.

551

PUBLIC REVENUE-Ad Valorem Taxes (Unofficial)

A lienholder, by paying the proportionate part of the taxes assessed

against the property of the taxpayer which the value of the property sub-

ject to his lien bears to all of the property in the assessment, may release

the property subject to his lien from the lien for taxes.

.

Hon. R. B. Vickers

October 25, 1945

Commissioner of Roads & Revenues

Bacon County

Alma, Georgia

This wi.ll acknowledge your letter of October 11, in which you ask for

information as to whether a ptrson can pay taxes on his real estate and leave

the personal property tax unpaid, as relates to farms in your county where

the Loan Companies want to pay the amount of the tax due on the land upon

which they hold mortgages to secure their loans, thus leaving unpaid a part

of the tax liability upon which a tax fi fa has been issued.

Section 92-5712 of the Code of 1933, annotated, provides:

"The owner or the holder of any equity, lien, or interest in or on property

returned or assessed with other property for taxes shall be allowE:d to pay the

taxes assessed against any one or more pieces of such property, (a) when

listed separately by the owner or assessor on the tax return or digest, accord-

ing to the valuation shown by said return or assessment, (b) when not listed

separately on the tax return or digest by the owner or assessor, by paying the

proportionate part of the taxes represented by such property according to the

valuation in thE: return or assessment; that is to say, such proportionate part

of all of such taxes represented by such return or assessment as the value of

such separate piece of property (upon which payment is being made) bears to

all of the said property in such return or assessment. The officials charged

with the collection of taxes for this State or for any subdivisions of the State

and (including municipalities and all other subdivisions of the State and coun-

ties) and/or any transferee of said tax lien shall be required to accept payment of said taxes when tender is made as provided herein, shall issue a receipt showing such payment, and shall execute a release of said property from such

lien for taxes, and the official or transferee accepting said payment and re-

leasing said property shall be paid a fee of 50 cents for issuing said recE:ipt and

release. . . ." The foregoing clearly provides that the tax may be paid on any part or
piece of property, real or personal, in accordance with its value as relates to the whole return, assessment or lien and that the official or transferee, as the

case may be, must accept payment of the proportionate part of the taxes due

on said property. In effect, it compels the holder of the lien to resort to the

other property involved or owned by the person against whom the tax fi fa

issued, and upon which taxes have not been paid, for satisfaction of the re-

mainder of the fi fa., or lien.

552

PUBLIC REVENUE-Ad Valorem Taxes (Unofficial) Mistakes in a tax digest may be corrected by the county board of tax assessors, or by the State Revenue CommissionH with the sanction of the Governor.

December 18, 1945

Hon. E. W. Hill, Clerk

Board of Commissioners

Screven County

Sylvania, Georgia

This will acknowledge your letter of December 15th.

Section 92-6911 of the Code of Georgia of 1933, annotated, provides that

the board of county tax assessors in each county may meet at any time to re-

ceive and inspect the tax returns to be laid before them by the tax receiver.

It is made the duty of the tax assessors under said section, among other things,

to correct such returns, adjust and fix the valuation, and further provides how

and when the taxpayer shall be notified.

Section 92-6501 provides:

"If a receiver makes a mistake in his digest, which is not corrected by the

county board of tax assessors, the Comptroller (now State Revenue Commis-

sioner), with the sanction of the Governor, shall correct such mistake by mak-

ing the necessary entries in the digest furnished the Comptroller, (Commis-

sioner) and in writing notify the ordinary or other authority having charge

of county affairs and the tax collector of the county from which such digest

comes, of such mistake and correction." (Emphasis supplied).

I would suggest that you study these provisions of law carefully and if you

need any assistance in construing them I feEol sure your county attorney will

be glad to aid you in the matter.



PUBLIC REVENUE-Ad Valorem Taxes The tax collector, by accepting a check in less than the amount of taxes due by the taxpayer, is not estopped from collecting the balance.
January 3, 1946 Hon. M. E. Thompson State Revenue Commissioner
In your letter of December 21, you submit the following facts: That Lamar County leviEod ten mills on the dollar for county-wide school taxes for the year 1945, as provided by the Constitution of 1945; that the Central of Georgia Railroad Company, whose line runs through Lamar County, through its trustees, has tendered a check for taxes on a basis of five mills instead of ten, and stating on said check that the school tax is at the rate of five mills instead of ten mills. You request my opinion on the question of whether or not acceptance of this check would estop the tax collector from insisting upon the payment of the remainder. Georgia Code Section 89-903 provides: "Powers of all public offices 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."

553
Under th.is code section, the tax colkctor would not be estopped from legally collectmg .the balance due in taxes by the railroad company, should he a.ccept and depos1t for credit of the county and the County Board of Educatw~ the amount of the check tendered. In other words, in the event of court achon by the taxpayer, he could not plead the benefit of any act of the tax collector in accepting less than the full amount of the taxes due as levied by the prope,r levying authorities.
PUBLIC REVENUE-Ad Valorem Taxes A tax receiver may not assess property at a higher value than that returned by the taxpayer unless. the taxpayer has grossly undervalued it.
FeJ;>ruary 8, 1946 Hon. M. E. Thompson State Revenue Commissioner
I am in receipt of yours of February 5, which reads as follows: "Please advise what authority the Tax Receoivers now have to require property owners to increase the value on their property when making returns for 1946. Is it their duty to require increases if they feel that the property is worth more than the owner offers to return it for or do they have to leave the matter of valuation in the hands of the Board of Equalizers." Chapter 92-67 provides a method for Tax Receivers to assess property under the following conditions: 1. Where the taxpayer has not returned it at all. 2. Where the taxpayer in his return has grossly undervalued it. In either of such instances Code Section 92-6702 provides as follows: "When such property is of that class which should be returned to the tax receiver of the county, the said tax receiver shall notify in writing such delinquent, or, if dead, his personal representative or representatives, of such delinquency, requiring that a return shall be made within 20 days."
Code Section 92-6703 provides as follows: "If the delinquent or his personal representative or representatives, as provided under seoction 92-6702, refuses or fails to return such property after notice given him, the tax receiver shall assess such property for taxation from the best information he can obtain as to its value for the years in default, and notify such delinquent of the valuation, which shall be final, unless the person notified shall claim that it is excessive, in which event the further procedure shall be by petition in equity in the superior court of the county where such property is assessed." The case of Richmond County v. Steed, Tax Receiver, 150 Ga. 229, held that a Tax Receiver may in a proper case be compelled by mandamus to give the above notice and to assess the property of a delinquent taxpayer. We especially call attention, however, to the fact that the Tax Receiver has no power to increase the value of property of the taxpayer who has made his return for the year 1946 unless in the discretion of the Tax Receiver the taxpayer has grossly undervalued it. It appears that Chapter 92-69, relative to the County Board of Tax Assessors, their powers and duties, did not repeal Chapter 92-67, but. on .th~ contrary the General Assembly codified both in the Code of 1933 wh1ch md1eates

554
that it was the intention of the Legislature for both of these methods of aEsessment to remain in force.
In those cases where the Tax Receiver merely feels that the property is worth more than the owner returns it and that there is no gross undervaluation, he has no power to assess this property but should leave the matter of valuation to the Board of Equalizers.
PUBLIC REVENUE-Ad Valorem Taxes A granite deposit is assessed as a part of the realty until it iE quarried or unless a mineral lease has been granted to another.
March 13, 1946 Hon. 1\I. E. Thompson State Revenue Commissioner
This will acknowledge your request of the 9th instant, based upon the letter of Hon. L. L. Stovall, Chairman of the Board of Tax Assessors of Elbert County. Mr. Stovall desires an opinion "as to whether the granite in a quarry can be assessed as a mineral deposit in addition to the land it is on".
The Appellate Courts of our State do not seem to have passed upon this question. However, I am of the opinion that a granite deposit is a part of the realty, unless and until it is cut or quarried and thus severed from the realty, and therefore should be taxed as realty. It may be that the value of the land is enhanced by virtue of the presence of the mineral deposit, and the tax assessors should take this fact into consideration in assessing the land at its fair market value. If the owner of the land also owns the mineral deposits, and has executed no lease of mineral rights in the quarry to another person, then the entire value of the realty (including the granite) should be assessed as the property of the owner.
On the other hand if a mineral lease has been executed by the owner of the land to another person or company, then taxes on the fair market value of the mineral rights should be assessed against the holder of the mineral lease. This is true for the reason that Code Section 92-104 provides:
"All persons owning any mineral or timber interests, or any other interest in or claim to land less than the fee shall return the same for taxation and pay taxes on the same as on other property".
PUBLIC REVENUE-Ad Valorem Tax (Unofficial) The hospital authority of a county may not levy a tax for the cost of construction and operation of the hospital, but the county may contract for the use of the services and facilities and levy a tax to pay for the same.
March 29, 1946 Hon. Lee S. Purdom City Attorney Blackshear, Georgia
This will acknowledge your letter dated March 26, in which you state that the City of Blackshear and Pierce County plan to erect, equip and operate a hospital to take care of the general public of Pierce County and request my opinion with respect to whether, if a hospital authority is created for th~:

555

county: such hospital authority could levy a tax or assessment for the purpose of paymg the cost of the building and the operation of the same. You further inquire that in the event a tax may be levied by the hospital authority will the homestead and personal property exf>mptions apply to such levy.
In Southern Express Company v. Rose Company, 124 Ga. 581, the Supreme Court of this State quoted with approval the earlier cas~ of AL'>.any Bottling Company v. Watson, 103 Ga. 503, as follows:

"The power to tax is incident to the State. Neither counties nor municipal corporations of any_ character possess this power to any extent unless conferrf>d by the Constitution or laws of the State, and, therefore, such power can only be exercised when delegated in plain and unmistakable tHms, or when it results by necessary implication from other powers expressly created.... The exercise of this power being so limited and restrictf>d, the burden is on every political division of the State, which demands taxes from' the people, to show
the authority to exercise it in the manner in which ft has been imposed."
I have been unable to find any Constitutional or statutory provision delegating to an authority such as that mentioned in your lf>tter, the power to levy and collect taxes. You are undoubtedly familiar with Article 7, Section 6, Paragraph 1 of the new Constitution which specifically authorized any city, town, municipality or county of this State, or any combination of the same, to contract with any public agency, public corporation or authority for the care, maintenance and hospitalization of its indigent sick and to obligate itself to pay for the cost of acquisition, construction, modernization or repairs of necessary buildings and facilities by such public agency, public corporation or authority from revenues realized by such city, town, municipality or county from any taxes authorized by the Constitution of the State or revenues derived from othf>r sources. Pursuant to that constitutional provision the General Assembly in 1941 passed an Act creating in and for each county and municipal corporation of the State, a public body corporate and politic to be known as "The Hospital Authority" of such county or municipal corporation. (Ga. L. 1941, pp. 241-250). The general purport of that Act was that the authority so created could issue revenue anticipation certificates and that the county or municipality could contract with the authority to provide medical or other care and hospitalization for the indigent sick of such subdivisions. However, Section 10 of that Act specifically states that the authority shall have no power to tax. It does authorize an ad valorem tax not exceeding five mills exclusive of all other taxes which may be levied by counties or by cities or towns which have executed contracts with the hospital authorities from which revenues, when realized, is to be appropriated annually sums sufficient to pay for the cost of the use of the services and facilities of the authorities by participating subdivisions or the residents thereof pursuant to the contract betwf>en such participating units or subdivisions and an authority. That tax, of course, is authorized to bf> levied by the political subdivision contracting with

the authority and not by the authority itself. .

.

As I do not find any law which would authonze such an authonty to levy

a tax, the question with respect to the homestead and personal property

exemptions need not be answered.

556

PUBLIC REVENUE-Ad Valorem Taxes ( 1) Individual owners of improved property lying on or across county lines must return to the tax receiv~::r of each county the portion lying in said county. (2) The county governing authorities may not reduce a valuation assessed by the county board of tax assessors or relieve the taxpayer from payment of the tax on the grounds that the assessment is too high.

Hon. M. E. Thompson State Revenue Commissioner

August 7, 1946

This will acknowledgE: your letter of August 2, in which you ask for an opinion on the following two questions:

1. What is the law in regard to returning or assessing land which borders the line between two counties, such as land lots or parcels, wholly within one county, but one boundary of which is the county line? Also as to land tracts which have part of same in one county and part in an adjoining county?
2. What authority have county commissioners or county governing authorities, if any, to reduce valuations assessed by a county board of tax equalizers, or to relieve all or part of the amount of taxes du~:: by any taxpayer on the sole ground that in their opinion the assessed value is too high?
Referring to Question No. 1, your attention is called to Section 92-6206 of the Code of Georgia of 1933, which reads in part as follows:
"All lands in this State subject to taxation, whether improved or unimproved, shall be returned by the person owning the same, or by his agent or attorney, to the tax receiver of the county where the land lies."
An ~::xception to this provision is set forth in Section 92-6209 of the Code, referring to property on or across county lines, which reads as follows, in part:
"The president, superintendent, or agent of all manufacturing and other companies, whether incorporated or not, other than such companies as are required to make return of the value of their properties and franchises to the Comptroller General under the provisions of sections 92-2301 to 92-2309, 92-5901, and 92-5902, and all pHsons and companies conducting business enterprises of any nature whatsoever, shall return for taxation at its true market value all their real estate to the tax receiver of the county wherein said real estate is located: Provided, that if the real estate lies on or across the county line or county lines, and in two or more counties, it shall be r~::turned to the tax receiver of the county wherein are located the main buildings containing the machinery or most of the main buildings-".
In connection with the above sections I cite the following cases: Penick, Ta~ Collector, et al., v. High Shoals Manufacturing Co., 116 Ga. 819; County of Walton, et al., v. County of Morgan, 120 Ga. 548; High Shoals Manufacturing Company v. Penick, Tax Collector, et. al., 127 Ga. 504.
Section 92-6211, in regard to wild land, provides that the owner of any wild lots or tracts of land through which county lines may run shall be allowed to return said lots or tracts of land in ~::ither county containing any portion of said lots or tracts of land.
Under the sections and authorities above cited, I am of the opinion that all individual owners of real property must return said property to the tax receivers in each of the counties in which the land lies.
Question No. 2. The law provides for a county board of tax assessors

557
whose duties are sc,t forth in Section 92-6911 of the Code of Georgia of 1933, and provides that this board shall examine all returns of both real and personal property of each taxpayer and correct such returns, and shall assess and fix the just and fair valuation to be placed on the property and shall make a note thereof and attach the same to the returns. It shall be the duty of the board to see that all taxable property within the county is assessed and returned at its just and fair valuation and that valuations as betwc,en the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be only his proportionate share of taxes. This section provides further that if any corrections or charges are made by the tax assessors the board shall, within five days, give notice to the taxpayer of the changes made in his return, etc. Section 92-6912 provides as follows:
"If any taxpayer is dissatisfied with the action of the board, he may within 10 days from the, giving of said notice in case of residents, and within 20 days in case of nonresidents of the county, give notice to the board that he demands an arbitration, giving at the same time the name of his arbitrator; the board shall name its arbitrator within three days thereafter and these two shall select a third, a majority of whom shall fix the assessments and the property on which said taxpayer shall pay taxes, and said decision shall be final, except as far as the same may be affected by the findings and orders of the State Revenue Commission as hereinafter provided."
The full duties of the tax assessors, or equalizers, are set forth in Sections 92-6911, 92-6912, 92-6913, 92-6914, 92-6915, 92-6916 and 92-6917.
It appears from the law providing for tax ass6ssors describing their duties, etc., that they have the sole authority as to the valuations, etc., of properties in the several counties in this State, and when their assessments are made the same is final, subject to the revision, etc., of the State Revenue Commissioner
as herein set forth. Under the law as herein set forth, I am of the opinion that neither the
ordinary nor county commissioners having charge of the affairs of the county have any authority whatsoever to change, modify, reduce, increase or relieve any taxpayer from the assessment made by the tax assessors and approved by
the State Revenue Commissioner.

PUBLIC REVENUE-Ad Valorem Taxes (Unofficial) An industry enjoying a five year tax exemption under the Constitution of 1877 may not obtain a tax exemption for an addition or enlargement
after the adoption of the 1945 Constitution.

September 10, 1946

Hon. Frank M. Gleason Attorney at Law Rossville, Georgia
Your letter of September 6th received. You request that I advise whether or not a firm or corporation who is exempted from tax by virtue of the old Constitution could enlarge the plant after the adoption of the new Constitution and se~ure the benefit of the exemption on the new or enlarged part of

the

plant. Paragraph 2A,

Section

2,

Article

7

(Code

. Secti?n

.2-5003~

of

the

. Consti:u-

tion of 1877 provided for the exemption of certam mdustnes from taxatiOn

558
for a five year period. Where the same had been put into effect by an election after January 1, 1924, if anyone built, equipped, established or enlarged certain manufacturing plants designated by the Constitution such person, as to such building ~:nlargement or equipment was exempt from county or municipal tax for a period of five years from the date of the beginning of the building, enlargement or equipment of such plant. This constitutional amendment was put into effect by an enabling act passed in 1926 (Ga. L. 1925, p. 263). This Act is codified in Sections 92-205 through 92-218. Section 92-216 of the Code provides in substance that if an election shall result in favor of tax exemption, any person who may build, equip, establish or enlarge manufacturing plants, therein designated, such person shall, as to such building, enlargement and equipment be exempt from ad valorem taxes for a period of five years from the date of the beginning of the building, equipment or enlargement of such plant.
Section 92-218 provided for the repeal of the five year term exemption. The last paragraph of this Section provides as follows:
"The repeal of any tax exemption by any county or municipal corporation shall not operate to effect the term of exemption to which any person is entitled; by reason of having built, equipped, established or enlarged any of the plants referred to in Section 92-216; but any such person shall be entitled to enjoy the full term of the tax exemption obtained in said county or municipal corporation."
Construing the provisions of the law above referred to, I am of the private opinion, that the exemption applied to only that part of the plant which was constructed after the subdivision had voted to grant the exemption, and that the exemption applied for a term of five years from the date such new building, enlargement or equipment was made or installed.
The Constitution of 1945 does not provide for the exemption which was included in the Constitution of 1877. Paragraph 5, Section 1, Article 7 of the Constitution has the effect of providing that existing exemptions obtained under the Constitution of 1877 should continue of force until the expiration of the term for which granted. The exemption continued in force by the Constitution of 1945 would refer to only that part of the plant which was constructed under the exemption law.
I am, therefore, of the opinion that since the adoption of the Constitution of 1945 that a plant enjoying tax exemption by reason of the Constitution of 1877 would not be entitled to tax exemption for any enlargement or addition made to the plant since the adoption of the Constitution of 1945.
PUBLIC REVENUE-Ad Valorem Taxes (Unofficial) Merchandise used in connection with a business permanently located in a county is taxable in that county regardless of the residence of the owner.
December 18, 1946 Hon. Joe Underwood Mount Vernon, Georgia
In our conversation over the phone this morning you requested that we give you an unofficial opinion in regard to the right of Tattnall County to tax certain personal property owned by a concern located and residing in Montgomery County.

559

I u~derstood you to state over the phone that the owner of the property locate_d m ;rattnall County resided in Montgomery County, that he operated a busmess m Montgomery County from which he furnished to a branch busi ness operated in Tattnall County the merchandise which was sold in Tattnall County. I also understood that where the business in Tattnall County made ~ny sale on credit that such business had to be first approved by the owner m Montgomery County, and that the owner in Montgomery County had returned all property for taxation in Montgomery County.
Individual returns for taxpayers shall be for propHty held and subject to taxation on the first day of January, next preceding. See Section 92-6202 of the Code.
In the absence of a statute personal property is to be returned where the owner resides. The General Assembly may fix the taxing situs of all personal property, but it must be by general law, and classified according to the nature of the property, and not according to the nature of the owner. See County of Walton, et al. v. County of Morgan, 120 Ga. 548.

One of the exceptions made to the general rule that the property shall
be returned in the county of the residence of the owner is set forth in Sec-
tion 92-6208 of the Code. That Section provides in part as follows:
"All persons, companies, and corporation * * * conducting any business
enterprise upon realty not taxable in the. county in which such persons reside or the office of the company or corporation is located, shall return for taxa-
tion their stock of merchandise, raw materials, machinery, live stock, guano,
commercial fertilizer, and all other personalty employed in the operation of
such business enterprises * * * on hand at the time for the valuation of property for taxation, * * * in the county in which is taxable the realty wherein such business enterprises are located or carried on: * * *."
See High Shoals Manufacturing Company v. Penick, 127 Ga. 504 where

this rule was applied. Property temporarily located in a county other than that of the residence
of its owner, even though used to carry. on a business, where the property is moved from place to place where the owner decides that its operation would be more profitable to him, would not come within the exception as pr?vided for in Section 92-6208 and would be taxable in the county of the residence of the owner. See Joiner v. Pennington, 143 Ga. 438; Collins v. Mills, 198 Ga. 18; O'Neal v. Whitley, 177 Ga. 491; Lewis & Holmes Motor Freight Corp. v.

City of Atlanta, 195 Ga. 810.

I am of the opinion that the merchandise used in connection with the

operation of a business set up and located in Tattnall County would be tax-

able in Tattnall County on the value of the property on hand on January 1st,

notwithstanding the orders taken the shipments thereof made, the

for merchandise sold in credits of the cust?mers

. pt haesseb~r aunpcohn ,s t oarned,

the books of account kept at a point where the mam busmess IS located in

another county. See Colga;e Palmolive Peet Co. v. Davis, 196 Ga. 681.

560
PUBLIC REVENUE-Homestead; realty (Unofficial) Realty classified as a homestead is subject to taxation to pay the principal and interest on a bonded indebtedness cre'ated after the adoption of the 1945 Constitution.
October 8, 1945 Hon. C. C. King, County Attorney Newton County Covington, Georgia
Your letter of October 5th received. You request an unofficial opinion as to whether or not real estate would be exempt from taxation to pay the interest and retire bonds to be issued since the adoption of the 1945 Constitution. Paragraph 4, Section 1 of Article 7 of the Constitution of 1945 provides for the exemption of the homestead of parties actually occupying the same as a home in the following language: "The homestead of each resident of Georgia actually occupied by the owner as a residence and homestead, and only so long as actually occupied by the owner primarily as such, but not to exceed $2,000.00 of its value, is hereby exempted from all ad valorem taxation for State, county and school purposes, except taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness, provided, however, should the owner of a dwelling house on a farm, who is already entitled to homestead exemption, participate in the program of rural housing and obtain a new house under contract with the local housing authority, he shall be entitled to receive the same homestead exemption as allowed before making such contract. The General Assembly may from time to time lower said exemption to not less than $1250.00. The value of all property in excess of the foregoing exemptions shall remain subject to taxation. Said exemptions shall be returned and claimed in such manner as prescribed by the General Assembly. The exemption herein provided for shall not apply to taxes levied by municipalities." By referring to the homestead exemption as provided for in Section 2-5008 of the 1943 Cumulative Pocket Part of the Annotated Code, you will find that the language used in the Constitution of 1945 is very similar to that used in the Act of 1937 and ratified June 8, 1937. The 1937 amendment provided that beginning January 1, 1938, that there should be exempted from ad valorem taxation for State, county and school purposes the homestead occupied by the owner primarily as such "with the exception of taxation to pay interest on and retire bonded indebtedness." The new Constitution ratified August 8, 1945 provides that the homestead of each resident of the State actually occupiE:d is exempted from ad valorem taxation for State, county and school purposes, except taxes levied by municipalities for school purposes and "except to pay interest on and retire bonded indebtedness". The Supreme Court of the State in construing the language "with the exception of taxation to pay interest on and retire bonded indebtedness" of the 1937 amendment held that the realty referred to as the homestead would not be exempt from taxation for the purpose of paying interest and retiring bonded indebtedness, created after the adoption of the 1937 amendment. See Campbell v. Red Bud Consolidated School District, 186 Ga. 541. I am of the opinion that the language "except to pay interest on and re-

561
tire bonded indebtedness" as used in the 1945 amendment to the Constitution considered with the context of the provisions of the Constitution exempting homesteads from taxation should be construed as granting an exception from the declared exemption and that the realty classified as a homestead would be subject to taxation to pay interest on and retire bonde:d indebtedness created after the ratification of the 1945 Constitution.

PUBLIC REVENUE-Homestead; realty (Unoffi.~ial) Absence from residence because of duty in the armed forces of the United States is not a waiver of homestead exemption provided the tax rece:iver or tax commissioner is notified.

Paul E. Brown, Capt., A. C.

December 10, 1945

Legal Officer

592nd AAF Base Unit

Fort Dix, New Jersey

This will acknowledge your letter of Novembe:r 30, asking whether the

State of Georgia has a statute which provides for the: automatic filing of a

homestead exemption in the case of military personnel.

Section 92-220 of the Code of Georgia of 1933 provides for the filing of

applications for homestead exemptions:

"92-220. Application for exemption.-The person seeking said exemption

shall, on or before: May 1st of the year in which exemption from taxation is

sought, file a written application and schedule with the county tax receiver

or tax commissioner charged with the duty of receiving returns of property

for taxation. The failure to so file said application and schedule as provided

herein shall constitute a waiver upon the part of such person failing to make

said application for exemption for said year."

Section 92-221 provides: "92-221. Waiver of exemption.-The failure to so file said application

and schedulE: as provided herein shall constitute a waiver upon the part of

such person failing to make said application for exemption for said year."

An Act was passed by the last General Assembly and approved on March

9, 1945, providing that: "Absence of a person from his residence because of duty in the armed

forces of the United States will not be considered as a waiver upon the part

of such person in applying for a home:stead exemption. Any member of his

immediate family or a friend may notify the tax receiver or the tax commis-

sioner to grant the homestead exemption to the person so absent in the armed

forces of the United States." If the Tax Receiver had the notice, provide:d in the above quoted provision,

the enlisted man referred to in your letter would be entitled to his exemption.

I would advise you to take this matter up with the Tax Receiver or Tax As-

sessors in the county of the young man's residence. For your information, the Homestead Exemption Law was amende:d so

as to change the filing date of applications for exemption, from May 1st to

April 1st of such year, effective for 1946.

562

PUBLIC REVENUE-Homestead; Realty

(1) The time for filing an application for homestead exemption may not be extended. (2) A taxpayer whose application for homestead exemption has been lost

or misplaced by the tax receiver or commissioner has a remedy in the

courts.

January 22, 1946

Hon. M. E. Thompson

State Revenue Commissioner

This will acknowledge your letter of January 18, in which you state that

it has come to your attention that in some instances home owners claim that they filed application for Homestead Exemption and that these applications

were lost or misplaced by local tax officials and as a result the taxpayer failed

to obtain the exemption which, under the law, they are entitled to receive. Based on these circumstances you ask my official opinion on the following

questions: 1. Whether or not for the year 1945 local or State officials have the
authority to extend the time for filing application for Homestead Exemption?

2. "What recourse, if any, the taxpayers may take? There is no provision of law by which either local or State officials may extend the time for filing applications for homestead exemptions. The Homestead Exemption Law is clear as to when and how applications shall be filed

and it is made mandatory on the tax receiver (or tax commissioner) to receive,

file and preserve such applications under Section 92-226 of the Code of 1933,

annotated pocket part, as follows: "The tax receiver or commissioner shall receive all applications for home-

stead exemption and shall file and preserve the same. Said application shall

be filed with said tax receiver or commissioner as herein provided." \Vhere a taxpayer has duly filed an application for homestead exemption,

and he is otherwise entitled to the same, as provided by law, but which appli-

cation has been lost or misplaced by the tax officials and the taxpayer has been

thus deprived of the exemption to which he is entitled for the year 1945, it is presumed that the tax collector has performed his duty and that execution ha:;

issued for 1945 against the taxpayer, which would be a cloud on the title of the taxpayer and subject him to annoyance. The taxpayer, therefore, would have recourse in a court of equity by petition for the cancellation of the execution as a cloud on his title. In the event the execution has been levied, counsel for the taxpayer would determine, under the facts, whether an affidavit of illegality or petition in equity would be most effective in granting him the proper relief.
Regardless of whether a public official gives bond for the faithful performance of his duty or not he is personally liable in a suit for damages .for failure to perform the duty imposed upon him by Jaw.

563

PUBLIC REVENUE-Homestead; Realty (Unofficial) (1) Farming is not a commercial enterprise under the homestead exemption laws.
(2) A farmer who, with his family, occupies 50% or more of his house as a dwelling may receive a homestead exemption, although the remainder is occupied by his tenant.

Hon. A. 0. Hood

January 22, 1946

Tax Receiver, Jackson County

Jefferson, Georgia

This will acknowledge your letter of January 17, with reference to home-

stead exemptions in your county.

In 1943 the General Assembly amended Section 8 of the original Home-

stead Exemption Act (Ga. L. 1943, p. 103) so as to define "occupied primarily

as a dwelling" as used in the Act, which definitions include th~ following:

"(a) That the applicant and members of his family occupy the property

solely as a home; or

"(b) The applicant and his family occupy a portion, 50 per cent or more,

as a dwelling and the remainder, 50 per cent or less, is occupied by a tenant

as a dwelling; or"

There is not much, if any, doubt as to th~ meaning of the provisions of

the Constitutional Amendment. Its purpose was to exempt the homestead of

each bona fide resident to the extent provided. The provisions of actual oc-

cupancy by the owner enter into the definition of bona fide homestead. As

long as a farmer occupies 50 per cent or more of his dwelling as a homestead

and the other portion is occupied by a tenant as a dwelling, and the farmer

has otherwise qualified, I see no reason why he could not farm his land in any

way that he sees fit without forfeiting his right to homestead exemption. I

do not think farming could be construed to be a commercial enterprise as

embodied in the Act of 1943 amending the Homestead Exemption Act.

After application has been filed by the person seeking exemption the law

provides that:

"92-228. The official r~ceiving said application shall determine the eligi-

bility of the applicant to claim the exemption provided for herein and, whether

said application is approved or disapproved, he shall then transfer same to the

county board of tax assessors for final determination. by said board as to eligi-

bility and value as provided by law."

It therefore becomes a question of fact for the board of tax assessors to

determine whether the portion of the house occupied by th~ applicant as a

homestead is such as to entitle him to the homestead exemption.

PUBLIC REVENUE-Income Taxes (Unofficial) The State Revenue Commissioner may examine the Federal income tax returns of a taxpayer when it is necessary properly to audit his returns.
September 10, 1945
Hon. Alex Jones Fairburn, Georgia
This will acknowledge receipt of a copy of a letter which you sent me on

564
August 30, which quoted an item from the Republic of Letters printed in the Atlanta Journal under date of March 9, 1945, as follows:
"State Photographing U. S. Income Tax Returns." Your answer to this letter is as follows: "Most informed people know that the United States Internal RevenuE: Code prevents the release of information contained in Federal Income Tax Returns." Since you sent a copy of your letter to me, it is presumed that you desire us to give you our views on the question under discussion. SE:ction 55 of Title 26 of the United States Annotated Code provides in part as follows: "(b) Inspection by states "(1) State officers. The proper officers of any State may, upon the request of the governor thereof, have access to the returns of any corporation, or to an abstract thereof showing the name and income of the corporation, at such times and in such manner as the Secretary may prescribe. "(2) State bodies or commissions. All income returns filed under this chapter (or copies thereof, if so prescribed by regulations made under this subsection), shall be open to inspection by any official, body, or commission, lawfully charged with the administration of any State tax law, if the inspection is for the purpose of such administration or for the purpose of obtaining information to be furnished to local taxing authorities as provided in this paragraph. . . " The State law on this question provides as follows: "Section 92-3215. Examination of Federal income tax returns.-Whenever in the opinion of the State RevE:nue Commission it is necessary to examine any copy of the Federal income tax returns of any taxpayer in order properly to audit the returns of such taxpayer, the Commission shall have the right to examine such returns and all statements, inventories, and schedules in support thereof."
PUBLIC REVENUE-Income Taxes (1) The failure of a person required by statute to file an income tax return o~ to pay the tax therE:on, when requested to do so by the State Revenue Commissioner, is a misdemeanor, and the criminal offense is not relieved by the imposition of other penalties by the State Revenue Commissioner, or the making of a return by him, for such person, from the best information obtainable. (2) To sustain a criminal prosecution for violation of the State income tax laws it must be shown that thE: violator was subject to the requirements of the laws; that after actual notice he failed to comply with the request of the State Revenue Commissioner; that he resides in the county where the proceedings are instituted. (3) The Attorney General may assist in the prosecution of State income tax law violators when requested by the State Revenue Commissioner.
September 25, 1945 Hon. M. E. Thompson State Revenue Commissioner
Your request of September 20, with respect to whether criminal prosecu-

565
tion can be instituted against persons who fail to file State Income Tax Returns and pay the tax thereon, is acknowledged'.
Before entering into a discussion of the legal questions raised by your request, let me commend you for your attitude in this matter.
It cannot be doubted that the Legislature intend:d that professional tax dodgers would be and should be vigorously dealt with. Tile fact that the large majority of Georgia's citizens file their income tax returns and pay the tax thereon, in accordance with the statutory requirements, saves the State thousands of dollars each year. Those who file late returns, incorrect returns, and those who file returns and do not pay the tax according to the requir:ments of statute are responsible for administrative costs to this State that could otherwise go to other public services. The person who, under the law, should file a return, but who fails to do so, brings up another and more serious problem. Such person, by such failure, defis the power of the State, disregards his duty as a law-abiding citizen, and shows thereby a degree of selfishness and disregard for his fellow man that is entirely out of harmony with the process of organized government. That is the reason that the Legislature enacted Section 92-9945, providing for criminal prosecution of such person. The Legislature thereby designated such person as a law violator; and we, as public officials, certainly should treat such person as a law violator.
The State can well afford to spend the necessary funds to insure the lawabiding citizens that th:ir interest and welfare will be protected against other citizens whose attitude has shown a lack of proper regard for the law. It is patently unfair to the good citizen who makes his return .and pays his tax as a matter of civic duty, to permit another citizen to escape unmolested the doing of an act required by law, and which by another act provides that his failure to act will subject him to criminal prosecution. It was never intended by the Legislature of this State that such person be permitted to remain btyond the pale of the law; and you and I, in whose hands the responsibility rests, should leave no stone unturned in bringing before the bar of justice and public opinion those who by their acts show that they have no respect for law and no feeling of responsibility toward the governmnt whose public services they use and
enjoy. The questions you raise in your letter, and upon which you request my
official opinion are as follows: Question I. What statutory provisions are there under Georgia law for
prosecuting criminally a person who fails to file an income tax return and pay
the tax thereon? In answer to this question, I quote you the statute, for it is a completE;
answer. "Section 92-9945. Failure of income tax payer to furnish information,
make returns, keep and exhibit records, or pay tax. If any individual, corporation, partnership, fiduciary, or any officer or employee, or member of a partnership required under Part IX of this Title, Income Taxes, to pay any tax, make any return kep any record, or supply any information, or exhibit any books or any rec~rds, for the purpose of computation, assessment or collection of any tax imposed by Part IX of this Title, shall fail .to pay this tax, make
such return keep such records, supply such information, or exhibit such books
or records ..:.hen requested to do so by the State Revenue Commissioner, shall, in addition to other penalties provided by law be guilty of a misdemeanor, and

566
upon conviction thereof, shall be punish&d as for a misdemeanor." (Emphasis supplied).
Part IX of this Title, as used in this code section, refers to the State Income Tax Law in its entirety; as that is the section of the State Revenue Act which has to do with income taxes. It was passed at the 1937 session of the Gc,neral Assembly and may be found in Georgia Laws 1937, Pages 109-140.
This code section contemplates prosecution for the failure of a person to do any one of the acts set forth in the statute; that is to say, if a person upon whom the law fixes the responsibility of making a return and paying th> taxes thereon fails in respect thereto, "to pay the tax, make a return, keep proper books, supply information", or fails to do any one of these required acts "after being requested by the Revenue Commissioner to do so" he becomes liable to prosecution in the criminal courts of this State.
At the same time, you, as Commissioner of Revenue, can impose additional penalties; and the imposition of any additional penalty or penalti>s, as will be hereinafter set forth, will not exclude the right or the duty of the Department of Revenue to request through the proper prosecuting authorities that criminal proceedings be instituted against such law violator. The Act plainly states that criminal prosecution shall be instituted "in addition to other penalti>s provided by law".
The other penalties, as above stated, which you may impose on such person, while at the same time pursuing the criminal remedy as herein provided, are set out in the following code section:
"92-3211. Pena~ties; late filing of, and failure to file, return; false or fraudulent return.-(a) Penalty for late filing. In the case of any taxpayer who voluntarily discloses and files an income tax return after such return has become delinquent, there shall be collected as a part of the tax a penalty of $5; or where no tax is shown to be du>, there shall be collected a penalty of $5.
"(b) Penalty for failure to file return. In the case of any person, firm or corporation who fails or refuses to file a return required by this law within the time prescribed by law, there shall be added to the tax a penalty equivalent to 25 per cent of the tax, but in no case shall the penalty so added be less than $5; or in the case of failure to file a return where no tax is due, there shall be collect>d a penalty of $5.
"(c) False or fraudulent return. In the case of any person, firm or corporation who files a false or fraudulent return, there shall be added to the tax a penalty equivalent to 50 per cent of the tax, but in no case shall the penalty so added be less than $5.
"The amounts so added as penalties shall be collected as a part of the tax."
You, as Commissioner of Revenue, may make a return for any p>rson who refuses or fails to file a return based upon the best obtainable evidence under authority of Code Section 92-3212, which is as follows:
"Return for delinquent person by Commission or agent. If any person, corporation, company, or association fails or refuses to make and file a return at the time prescribed by this or any prior law, or makes wilfully or otherwise, a false or fraudulent return, the State R>venue Commission or its agent shall make the return from its own knowledge and from such information as it can obtain through testimony or otherwise. Any return so made and subscribed

567
by the Commission or its agent, and approved by the Commission, shall be prima facie good and sufficient for all legal purposes."
This return by the Commissioner of Revenue can be made and an execution can be issued upon the basis of it when thE: taxpayer fails to pay the tax called for by such return, and proceed to levy upon the taxpayer's property. The doing of these acts by the Commissioner of Revenue does not exclude his right and duty to proceed under SE:ction 92-9945, by instituting criminal prosecution against such person who has failed to make a return and to lJay thE> tax thereon. You can, as Commissioner of Revenue, file such return for such person either before, simultaneously with, or after original proceedings under the criminal statute have been instituted. Such act on your part will not bar or in any way affect the criminal prosecution.
Any taxpayer who, under the terms of Section 92-3201, should file a return and pay his tax thereon, but who fails to do so, can bE: compelled to produce such records, books or information concerning his own tax liability under this Act or the liability of another, by your taking the appropriate process in the Superior Court of the county wherein such taxpayer resides. This remedy is given you under Code Section 92-3214. These proceedings can be instituted at your instances before, simultaneously with, or after the criminal remedy provided in this Act has beE:n instituted. Your availing yourself of this procedure will in no way bar a proceeding in the criminal courts against the law violator.
With reference to who can be prosecuted for failure to file an income tax return and pay the tax thereon, I call your attention to Code Section 923201, which is as follows:
"(a) Each of the following individuals shall make under oath a return stating specifically the items of his gross income and the deductions and credits
allowed by this law; " (1) Every resident individual having a net income for thE: taxable' year
of $1,000 or over, if single, or if married and not living with husband and wife. (2) Every resident individual having a net income for the taxable year of $2,500 or over, if married and living with husband or wife. (3) Every nonresident individual having a net income within this State for thE: taxable year of $1 000 whether married or single. ( 4) Every resident individual having a gross 'inc~me within this State for the taxable year of $5,000 or over, regardless of the amount of his net income.
"(b) If a husband and wife living together have an aggregate net income for the taxable year of $2,500 or over, or an aggregate gross incomE; for such year of $5,000 or over, (1) each shall make such a return, or (2) the income of each shall be included in a single joint return, in which case the tax shall be computed on the aggregate income but the total personal exemption shall not exceed the amount as provided in Section 92-3106.
"Regulation: In the case of married individuals living with husband or wifE:, the exemption is to be taken by either, or divided in any proportion be-
1; tween them but the total exemption for both is not to exceed $2,500.00. " (c) the taxpayer is unable to make his own return, the return shall be made by a duly authorized agent or by the guardian or other person charged with the care of the person or property of such taxpayer.
"(d) The return of an individual who, while living, received income in excess of the exemption during the taxablE: year, and who died before making

568
the return, shall be made in his name and behalf by the administrator or executor of the estate.
" (e) The final return for a deceased individual shall be made on an accrual basis and shall include income accrued to date of death, regardless of the method formerly used by the deceased individual."
The second question raisE:d by your letter is: Question II. What steps does the Department of Revenue have to take prior to the institution of such criminal proceedings? It is my opinion that you would have to be prepared to prove (a) that the person against whom criminal proceedings are instituted is a person whose income was as much as or more than the requirements of Code Section 923201, as hereinbefore quoted; (b) that afttr a request by the Commissioner of Revenue, as provided in Code Section 92-9945, the person failed to do all or any one of the required acts set forth therein; (c) that the person against whom criminal proceE:dings are instituted and actual notice of the Revenue Commissioner's request to pay the tax, or make a rE:turn, or keep such records as required by the law, or supply such information as would throw light upon his income, or to exhibit such books and records as provided under the criminal statute; (d) that the county in which criminal proceedings are instituted is the residence of the person being prosecuted. Question Ill. The third question raised by your letter is as follows: At whose instance can such criminal proceedings under this Act be instituted? Can the Department of Law intervene in such criminal proceedings and act as prosecuting attorney when such case comes on for trial? It is my opinion that you, as State Revenue Commissioner, have the authority to request that any person violating Section 92-9945 be prosecuted as provided for in this Act. It is my opinion that such request need not necessarily be made upon the Law Department of this State. You may go directly to thE: proper prosecuting official of the county of the residence of such law violator, with the evidence as set forth in answer to Question 2, and request that the person be prosecuted by way of a criminal accusation, or by way of indictment by the Grand Jury of the county of his rE:sidence. I feel confident in stating that you will meet with the complete cooperation of the prosecuting attorneys of this State in this matter.
You may, however, request the Attorney General, under authority of Section 40-1616 of the Code of 1933, (Ga. L. 1943, pp. 284, 285), to represent the State in such criminal prosecution. The statute above noted is as follows:
"40-1616. The Attorney General, as head of the Department of Law, and as chief legal officer of the State, is hereby authorized and E:mpowered to prosecute in the criminal courts of this State any officer, person, firm or corporation for violation of any criminal statute in dealing with or for the State, or any official or employee thereof, or any department, agency, board, bureau, commission, institution or appointee thereof; and the Attorney GenE:ral is authorized and empowered to call upon the prosecuting officer of any State court to assist in or conduct such prosecution, and when so requested by the Attorney General, it shall be the duty of any such solicitor general, solicitor or prosecuting officer of this State to assist in or conduct such prosecution for and in behalf of the Attorney General of this State."
The language in the body of this statute which empowers the Attorney General to prosecute in the criminal courts of this State any officer, person,

569

firm or corporation for violation of any criminal statute in dealing with or for

the State, to me clearly indicates that I should, where I am requested to do so

by one of the department heads of this State, cooperate in the prosecution of

persons who are violating a criminal statute in dealing with or refusing to deal

with one of the departments of State.

'

The Income Tax Act itself contemplated that the Attorney General would

reprE:sent the Commissioner of Revenue in any litigation growing out of the

enforcement of the provisions of the Income Tax Act. I refer you to Section

92-3306 of the Code of 1933.

Let me again commend you for the wisdom you have shown by your de-

cision to bring the professional tax dodger to the public till and force him to

contribute his just portion of taxes. I feel that your vigorous handling of such

matters will insure the collection of taxes that have heretofore been uncollE:cted,

and will inspire a degree of public confidence in the Department of Revenue of

this State that will be of lasting effect.

PUBLIC REVENUE-Income Taxes ( 1) Where an income tax return fully disclosE:s the total income from all sources, the Commissioner of Revenue has 3 years after the return is filed in which to audit the return and make an assessment thereon. (2) Where the Commissioner of Revenue makes an assessment upon a return which fully discloses the total income from all sources, he may not reopen the assessment except within 2 years from the last day on which the return could havE: been filed without becoming delinquent.
October 15, 1947
Hon. Glenn S. Phillips Commissioner of Revenue
This will acknowledge your recent letter, together with its later supplement, in which you request an official ruling in regard to the statute of limitations as applied to assessments for income tax purposes. You desirE: to know whether the Commissioner of Revenue is barred from making an assessment within three years after the return has been filed as provided for by law.
Section 92-3303 of the Amended Code provides in part as follows: "Except as provided in subsection (b) of this sE:ction, the amount of income taxes imposed by this law shall be assessed within three years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period." " (b) In the case a return is filed which fails to disclose the totai income from all sources, or the return is incomplete, the tax on the amount of income which is not fully disclosed togE:ther with schedules attached may be assessed at any time; or in case of failure to file a return, the tax may. be assessed or a proceeding in court for collection of such tax may be begun w1thout assessment
at any time." The above statute was approved March 30, 1937, and at that time became
the law of this State in reference to the question now under consideration. Your letters state that the itE:ms on which the assessment was made were fully returned by the taxpayer in making and filing his income tax return. In other words the taxpayer reported the income in question, but erroneously stated that it was not subject to tax by the State and figured his return on that basis.

570
It has now been determined judicially that thE: taxpayer was in error and should have included this item in taxable Income.
The above statute of 1937 clearly gives the Commissioner of Revenue three years after the date on which thE: return was filed to make an assessment, even though the taxpayer has made a full disclosure of income. There can be no doubt that this is the correct Jaw on the subject, unless the Legislature has subsequently amended or modified this statute. We must examine the later enactments relating to the statute of limitations on assessments made by the Commissioner in order to determine this question.
At the extraordinary session of 1937-38, the Legislature created the DE:partment of Revenue and made some other comprehensive changes in the tax laws of this State. In Section 92-8432 of the Pocket Part Supplement, it provides in part as follows:
"Any taxpayer may contest any additional assessment or license made or determined by the Commissioner, by filing with the said Commissioner a written protest at any time within thirty days from the date of notice of the assessment or license...."
Section 92-8433 provides: "In all cases in which protests are filed by taxpayers, as provided by law, the Commissioner shall consider the information contained in such protests and information submitted by taxpayers in confE:rences or hearing before the said Commissioner, or his officers or agents; and the Commissioner shall proceed to make final assessment, or fix a final license fee, and notify the taxpayer of the amount thereof, subject to the right of appeal as provided in this Chapter." It is clear that the above statutes authorizE: the Commissioner to make assessments for income taxes due the State. The taxpayer is given the right to protest such assessment, provided he does so within thirty days from the date of notice of the assessment. Section 92-8434 provides in part as follows:
"If the Commissioner shall ascertain that the rE:turn of any taxpayer contains mistaken, false, or fraudulent statements, or that it contains statements or omissions of data otherwise incorrect or misleading and that as a result thereof improper or inadequate assessments of taxes have been made, the Commissioner may determine and fix the amount of such taxes due by such taxpayers and shall proceed to collect the State tax due thereon...."
Section 92-8435 provides:
"In the absence of fraud, no assessment shall be reopened under Section 92-8434, 'excE:pt within two years from the last date upon which the return could be filed by the taxpayer under the law without delinquency. In any case in which any report, return, or other information contains fraudulent statements or omissions of material facts, the effect of which makes such taxpayer's report a fraudulent representation of the items or things required thereunder, the Commissioner may reopen the case and make additional assessments of taxes or licE:nses at any time, within seven years of said return." (Emphasis supplied)
The above statute, Section 92-8435, supra, only refers to reopening assessments which have previously been made. This can only mean that where the Commissioner has made an assessment, the same becomes final as to the StatE:" unless the Commissioner reopens such assessment within two years from the last date on which the return could have been filed without becoming delinquent. No one can make an assessment for income taxes except the Commissioner of

571
Revenue. Once he has made an assessment on a return where all of the facts are disclosed by the taxpayer, he is precluded from reopening this assessment after the expiration of two years from the date on which the return could have . been filed without being delinquent.
On the other hand, Section 92-3303 gives the Commissioner three years in which to make an assessment after the return is filed. This Section is a safeguard in which the State is given an additional year in which to make its original audit and assessment. The Legislature no doubt reasoned that if time permitted the Commissioner to examine the return and make a proper assessment thereon within the two year period, he should not be given additional time to reopen the assessment and correct his own errors. If, howevE:r, the large volume of returns filed prevented the Commissioner from completing his work within the two year period,.the Legislature granted him an additional year in which to perform this duty. Returns that are not assessed within the two year period may still be assessed within the three year limitation, but no such assessment made after the expiration of the two year period can be reopened by the Commissioner. In other words, if the Department of Revenue fails to make an assessment within two years on a return where all taxable items are fully covered, the Commissioner can make only one assessment prior to the running of the three year period. He must be sure that this assessment is correct because Section 92-8435 will preclude an additional assessment being made in the absence of fraud.
I am therefore of the opinion that where the return fully discloses the data relating to the taxpayer's liability, the Commissioner of Revenue has three years in which to audit the said return and make an assessment thereon. This three year period would run from the date on which the return was filed. I am of the further opinion that where the Commissioner makes an assessment on a return which fully discloses all items relating to tax liability, he is precluded from reopening such an assessment unless he does so within two. years from the last day on which the return could have been filed without becoming delinquent under the law. After the two year period has expired, you are prohibited from reopening your previous assessment, and the same becomes final insofar as the State is concerned.
PUBLIC REVENUE-ln:ome Taxes WherE:> a taxpayer has failed to comply with the provisions of Code Section 92-3205 requiring the report of payments by him amounting to $1,000 or over to any taxpayer, the disallowance of a deduction because of such violation is in the discretion of the State Revenue Commissioner.
December 30, 1947
Hon. -Glenn S. Phillips State Revenue Commissioner
In your letter of November 21, you refer me to an official ?pinio~ rendered by my predecessor on April 11, 1945, and ask for a reconsideratiOn of the question of whether or not the State Revenue Commissio~er is vested with any discretion in regard to the disallowance of payments claime~ as a deduc-
tion on a taxpayer's income tax return, where the ta::cpayer h~s failed to com~ly
with the provisions of Section 92-3205 of the Georgia Code m accordance With

572
the rules and regulations of the State Revenue Commissioner issued pursuant to that section of the income tax law.
Section 92-3205 provides that: "Information at the source; payments of $1,000 or more. Every individual, partnership, corporation, association or insurance company, being a resident or having a place of business in this State, including lessees or mortgages of real or personal property, fiduciaries, employers, and all officers and employees of the State or of any political subdivision of the State, having the control, receipt, custody, disposal or payment of interest, rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or othe:r fixed or determinable annual or periodical gains, profits, and income amounting to $1,000 or over, paid or payable during any year to any taxpayer, shall make complete returns thereof under oath to the State Revenue Commission, l).nder such regulations and in such form and manner and to such extent as may be prescribed by the Commission; and unless such income is so reported, the Commission may disallow such payme:nts as deductions or credits in computing the tax of the payer."
Upon looking at the whole of the above law in view of the point raised, it appears to resolve itself into two distinct questions. These are:
1. Does the violation of Section 92-3205 and a subsequent disallowance of the payments as deductions exact a penalty?
2. Does the word "may," in referring to the action of the Commissione:r upon a failure to make information returns, impose a mandatory duty, or is it merely directory?
While an affirmative answer to the first question may not require an inquiry into the second, I am of the opinion that both should be answered.
Looking at Section 92-3205 as a whole, it is evident that the chief purpose of this section was ~o set up a means by which the Commissioner could secure necessary information for a proper administration of the income tax law. Unless this information is secured by the Commissioner it would be easy for an employee or other person receiving payments to e:vade making a return of this income to the State. Thus, the primary purpose of Section 92-3205 is not to secure additional tax directly by imposing more tax on those who fail to report this information, but purely to provide the means of receiving such information. The provision for the payment of more tax by those who fail to make the information returns is the imposition of something additional upon those who violate the law. It matters not that this imposition of more tax is hidden by calling it a disallowance of a deduction. There must be a violation of law by a failure to make information returns, and the provision for the making of the information returns uses the word "shall" and is clearly mandatory before the disallowance of deductions occurs. This falls within one of the: accepted legal definitions of a "penalty" and it does not matter whether or not it is denominated as a "penalty" in the statute.
In 31 Words and Phrases 617 it is said:
"A 'penalty' is a sum of money of which the law exacts payment by way of punishment for doing some act which is prohibited or omitting to do some act which is required to be done; it is pecuniary punishment exacted by the law. First National Bank v. Coffey, 96 S. W. 2nd 270, 272, 170 Tenn. 469."
Other cases supporting this theory include Southern Railway v. Melton,

573

133 Ga. 277, 291, 65 S. E. 665; Neal v. Moultrie, 12 Ga. 104, 111, 113; Huntington v. Attrill, 13 S. Ct. 224, 227, 146 U. S. 657, 667.
If Section .92-3205 has in effect imposed a penalty which is, I believe, a correct assumptwn, then a discretion is vested in the Commissioner under the pr~visions of Section 92-3007 of the Georgia Code, a part of the income tax law, wh1ch provides:

"Compromise of penalty cases. Tht Commissioner may compromise any penalty arising under the provision of this Jaw prior to the date of actual assessment. After actual assessment no compromise of penalty shall be made without judgment in open court as provided by Code Section 92-8411. Where any penalty cases is compromised, the Commissioner shall keep on filt' in the file of the taxpayer involved a written statement of the reasons for such settlement and the name of the person or persons involved therein."

The first question having been answered in this manner, a discretion is vested, irresptctive of the answer to the second question. However, it is my opinion that the word "may" as used in the Jaws as follows: "the commission may i:lisallow such payments," is directory or permissive, not mandatory. The statute is mandatory only when it is stated that the taxpayer "shall make complete returns thereof under oath," but it fails to prescribe the time, place, or manner of making such returns, giving this duty to the Commissioner. This in itstlf would indicate that this statute is a tool for the use of the Commissioner in his discretion to secure a proper administration of the income tax law.

I am not unmindful of the fact that there are numerous Georgia cases where the word "may" or words of similar import have been construed as mandatory. In these cases it appears that the word "may" or similar words, if interpreted as permissive would destroy or seriously affect the right of a private individual or third persons, or would be adverse to the public interest. Casts where "may" or similar words have been construed as mandatory include Pound v. Faulkner, 193 Ga. 413, 417; Jennings v. Suggs, 180 Ga. 141, 142; Vason v. City of Augusta, 38 Ga. 542, 545; Birdsong and Sledge v. Brooks, 7
Ga. 88, 89. But the above illustrates the exception, and it is only where a permiSSIVe
construction of the word "may" would destroy or affect the rights of a private individual, or third partits, or be adverse to public interest, that it is given a mandatory construction. Ordinarily, "may" or words of similar import, when used in a statute, are permissive and this is the rule of construction prescribed in the Georgia Code, Section 102-103. Illustrations of the rule are in Longino v. Hanley, 184 Ga. 329, 330; Whitley v. State, 134 Ga. 758, 772; G. F. & A. Railw;ay Co. v. Sasser, 130 Ga. 394, 395; Weems v. Farrell & Williams, 33 Ga. 413, 419; DeLoach v. Sou~heastern Greyhound, 49 Ga. App. 662, 663; Smith
v. Board of Medical Examiners, 46 Ga. App. 456 (1). In the case of Whitley v. State, supra, Judge Lumpkin said: "Undoubtedly permissive words, such as 'authorize', or 'may', are some-
times construed as mandatory in effect, though permissive in form, as for instance where a statute provides for the doing of some act which is required by justice, or public duty. But where the language em~l?yed, together. with .its context shows that the Constitution or statutory proVISIOn under consideration conferr~d or recognized a discretionary power, a mandatory construction will

not be given to it."

.

Certainly in a case where the taxpayer has failed to make information re-

574
turns under the law in question justice would require that the Commissioner inquire into the reasons for the failure and act accordingly, and it cannot be said that it is in the public interest to allow no discretion in the Commissioner in the exercisE: of his authority in the administration of a provision in a taxing act which, if mandatory, would affect the taxpayer so harshly, resulting in the collection of additional taxes, which, by compliance with the law, could have been avoided.
It is therefore my opinion that the provisions of Section 92-3205 impose a penalty on the taxpayer for noncompliance and that the disallowance of deductions by the taxpayer on his return as a result of noncompliance is dirE:ctory to the Commissioner, rather than mandatory, and subject to the exercise of his discretion.
PUBLIC REVENUE-Intangible Taxes A hospital supported largely by income derived from pay patients is not entitled to an exemption on its intangible personal property as an institution of "purely public charity."
September 13, 1945 Ron. Ellis Arnall Governor of Georgia
I am pleased to acknowledge your letter of SE:ptember lOth, requesting an official ruling on the question of whether Crawford W. Long Memorial Hospital is entitled to an exemption from taxation by virtue of Paragraph 4, Section 1, of Article 7 of the Constitution of 1945. The pertinent part of this Constitutional provision provides as follows:
"The General Assembly may, by law, exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; all intangible personal property owned by or irrevocably held in trust for the exclusive benefit of, religious, educational and charitable institutions, no part of the net profit from the operation of which can inure to the benefit of any private person; .... " (Emphasis supplied)
That part of the above provision of the Constitution which I have emphasized was added to this paragraph by the people when the Constitution of 1945 was adopted.
The question presented is whether the language added to the Constitution entitles the Crawford W. Long Hospital to an exemption on intangible personal property which it owns. Before we can determine whether or not the hospital is entitled to be exemptE:d on its intangible personal property, it must first be determined whether or not this taxpayer should be classified in the category of "institutions of purely public charity." If the taxpayer could qualify as an institution of purely public charity, then it would be necessary to determine whether or not the enabling act or acts in question granted the exemptions sought. However, unless the taxpayer can first qualify as a charitable institution within the purview of thE: Constitution, it is not necessary to determine whether or not the Legislature has granted the exemptions sought. On May 24, 1943, my predecessor, Judge Grady Head, issued an official ruling relative to the question of whether this taxpayer should be classified as a purely public charitable institution within the purview of the Constitution as it existed at that time. He cited the case of Richardson v. Executive Committee of the Bap tist Convention, 176 Ga. 705, in which the SuprE:me Court of Georgia held that:

575
"A hospital supported in substantial part by donations and largely by inrome derived from 'pay patients' received in the hospital is not within the exception stated in the proviso, although the hospital also receives without charge certain patients who are unable to pay. Property used in such manner, whether or not the hospital is a charitable institution, is not exempted, and consequently is subject to taxation."
Judge Head, in his opinion, concluded as follows: "From the above stated authorities, the answer to your first proposition is that since the hospital mainly serves pay patients, it should not be classified as a purely public charity within the purview of the Constitution of this State. The property used by the hospital is subject to taxation."
In keeping with the opinion rendered by my predecessor, it is )1ecessary for the .hospital claiming an exemption from taxation to establish the fact that it is a charitable institution. Until this is done, the question of exempting its intangible personal property from taxation cannot be decided, that is, whether or not the property is owned or irrevocably held in trust for the exclusive benefit of the charitable institution, and whether or not the Legislature has passed an enabling act which would grant such an exemption. The Constitution itself does. not exempt anything from taxation but only grants power to the Legislature to exempt certain enumerated property set forth in the Constitution as amended. See, Trustees of the Academy of Ri.:hmond County v. Bohler, 80 Ga. 159.
Since my opinion in this matter is consistent with the one rendered by Judge Head, it is not necessary for me to go into the further question of whether the Legislature has passed a proper enabling statute, or whether the intangible personal property claimed to be exempt is owned or irrevocably held in trust for the exclusive use of the taxpayer.

PUBLIC REVENUE-Intangible Taxes The State Department of Revenue may require banks to report the ownership of intangible personal property of which the bank has knowledge.

November 26, 1947

Hon. 0. G. Jackson Superintendent of Banks
I h~ve your recent request for my opm10n on the following question:

Is it mandatory for banks to comply with the order of the State Department of Revenue requiring the banks to report the names and addresses of all Georgia residents whosestocks, bonds, and/or debentures, etc. the banks hold.

The authority of the Department of Revenue for the issuance of this order is contained in Code Section 92-136, which provides as follows:

"92-136. Sworn statements as to intangibles. The Commission, if in its judgment the information is reasonably req~ired for the. administrat~on of. t~is
law (92-113 to 92-159, 92-9946), is authonzed to require any public official, corporation, partnership, individual, trustee, or pledg?e, or. any ~lass thereof,
to provide a sworn statement respecting the ownership of mtangible personal
property, or of particular classes thereof, of which said person, or class of per-

sons, has knowledge."

.

Provisions for the enforcement of this Section and punishment of its viola-

576
tion are contain~::d in Code Sections 92-138 and 92-9946, which provide as follows:
"92-138. Compulsory production of evidence. If any individual, corporation, partnership, or fiduciary, or any officer or employee or member of the partnership, required under this law to pay any tax, make any return, or supply any information, or exhibit any books or records when requested to do so by the Commission, whether with reference to their own returns or not, shall refuse to do so, the superior court for the county in which such person resides shall have jurisdiction by appropriate process to compel such testimony or production of books, papers, or other data."
"92-9946. Violation of law classifying and taxing intangibles. Any person who shall. wilfully violate the terms of sections 92-113 to 92-159, providing for the classification, return, and taxation of intangible pusonal property, or shall wilfully fail to do any act required of him by said sections, shall be deemed guilty of a misdemeanor and punished as provided by law."
As you will see from the above Code sections, the Department of Revenue has the authority to issue such an order, and to make compliance with it mandatory on the part of the banks.
For your information, I attach a copy of the order together with the blank forms mentioned therein.
PUBLIC REVENUE-Motor Fuel Taxes A state agency is not exempt from the State motor fuel tax.
Nov~::mber 21, 1945 Lt. Col. Lee S. Purdom Georgia State Guard
I am in receipt of yours of November 16th enclosing the letter from Major Robert L. O'Neil regarding a refund of taxes paid on gasoline.
You ask the following questions: "Is an agency of the State of Georgia liable for the payment of State taxes on gasoline purchased for exclusive use in State business? If so, what methods or certificates should be used?" I have examined the law and find no provision by which any agency of the State of Georgia shall be exempt from payment of taxes on gasoline. CodeSection 92-1403 (3) provides an exemption under certain conditions for the United States of America or any of its instrumentalities, but this apparently does not extend to the State of Georgia.
PUBLIC REVENUE-Motor Fuel Taxes (1) The Federal Government is not liable for the State motor fuel tax on gasoline purchased by it and sold in sufficient quantities by the War Assets Administration for purchasers of planes to fly to a new source of supply. (2) Purchasers of gasoline from the War Assets Administration are liable for the State motor fuel tax. July 1, 1946
Hon. M. E. Thompson State Revenue Commissioner
I have yours of June 24, requesting an official opinion in regard to taxes

577
on gasoline sold by the Federal Government. From your request we quote the following which sets out the facts and the questions to be answered:
"The War Assets Administration is selling airplanes at various places in Georgia. The purchasers of these planes, of course, require gas in order to fly the,m to a source of gasoline supply. The Federal Government purchases this gas in large quantities and, in turn, sells e,nough of this gas to purchasers to fly the plane to another source of supply.
The questions needed to be answered are as follows: 1. Is the Federal Government liable for the tax on this gas? 2. If not, is the purchaser liable for the tax there,on? 3. If the purchaser does not pay the tax on this gas, is he subject to criminal prosecution as well as execution for the amount of the tax?" Section 92-1403 (of the Code of Georgia) sub-paragraph D, as amended by the Acts of 1943, page 340, exempts from taxation the sale of motor fuel to the Unite,d States of America when it is purchased and paid for by the United States. This, however, does not cover any sales by the United States of America to private citizens of this gasoline or the use by private citizens of this gasoline after having been purchased from the United States Government or any of its instrumentalities.
Section 12 of Title 4 Pocket Parts U. S. C. A. provides as follows: "12. Tax on motor fuel sold on military or other; reservation; reports to state taxing authority.
"(a) All taxes levied by any State, Territory, or the District of Columbia upon, with respect to, or measured by, sales, purchases, storage, or use of gasoline or other motor vehicle fuels may be levied, in the same manner and to the same extent, with respect to such fuels when sold by or through post exchanges, ship stores, ship service stores, commissaries, filling stations, licensed traders, and other similar agencies, located on United States military or othe,r reservations, when such fuels are not for the exclusive use of the United States. Such taxes, so levied, shall be paid to the proper taxing authorities of the State, Territory or the District of Columbia, within whose borders the reservation affected may bt: located.
"(b) The officer in charge of such reservation shall, on or before the fifteenth day of each month, submit a written statement to the proper taxing authorities of the State, Territory or the District of Columbia within whose borders the reservation is located, showing the amount of such motor fuel with respe,ct to which taxes are payable under subsection (a) for the preceding month. June 16, 1936 c. 582, 10, 49 Stat. 1521, as amended Oct. 9, 1940, c.
787, 7, 54 Stat. 1060." It will be noted that although there is a liability for the tax, there is no
provision by which this tax may be required to be collected by the instrumentalities of the Federal Government selling same. In the foot notes under said Section 12, we find that in the opinion of the Attorney General of the United State,s "The officers in charge of Federal reservations are required merely to report the amount of motor-vehicle fuels sold otherwise than for the exch,tsive
use of the United States." We think, therefore, that the answer to question number one set out
above is in the negative. Taking up question number two, as to the liability of the purchaser, we
quote you paragraph C of Code Section 92-1403:

578

"(C) Any person who shall receive motor fuel and/or kE:rosene, in such

form and under such circumstances as shall preclude the collection of the tax

provided for in this Chapter from the distributor, and shall thereafter sell, use

or consume, or dispose of in any manner and/or under such circumstances or

shall render such disposition subject to said taxes, shall be considertd as a

distributor for purposes of taxation, and shall make the same reports, pay the

same taxes, and be subject to all other provisions of this Chapter relating to

distributors of such fuels...."

The very small amount of tax which could be collected from the pur-

fly chaser of the few gallons of gasoline nece:ssary to

the plane to a source

of gasoline supply would probably make it too expensive for the State to at-

tempt to collect each of these small amounts from the purchaser of this gaso-

line. However, under a strict construction of the law we think that sub-

paragraph (C), quoted above, answers question number two in the affirmative.

As to your question number three, whether the purchaser failing to pay

the tax is subje:ct to criminal prosecution, as well as execution, for the amount

of the tax, we quote you Code Section 92-9924 (2):

"Any person .. , purchasing motor fuel and/or kerosene from any dis-

tributor tax exempt under the motor fuel tax law (Chapter 92-14) for export,

who shall use or permit to be used any of such motor fuel and/or kerosene in

the State of Georgia or shall sell any of the same (except for export, satisfac-

tory proof thereof being furnished at the time: and in the manner prescribed

by the Comptroller General) shall be deemed for all purposes of thE: motor-

fuel tax law to be the 'distributor' with respect to all of the motor fuel and/or

kerosene so purchased and to have 'received' the same within the meaning of

the motor-fuel tax law and shall be liable for the full amount of the tax im-

posed by the motor-fuel tax law thereon, together with a penalty of 50 per

cent., and shall, more:over, in the event of conviction thereof, be punished by

a fine of not less than $500 nor more than $10,000 or imprisonment for a term

of not less than 30 days or not more than one year, or both such fine and im-

prisonment. (Acts 1937, pp. 167, 205.)"

Therefore, we think the foregoing Code Section would make the purchaser

liable to execution and would also subject him to prosecution provided he had

notice of the fact that the tax had not been paid on this gasoline.

PUBLIC REVENUE-Motor Fuel Taxes (1) A "licensed retail de:aler" under the Motor Fuel Tax Act is a person who has paid the $3.00 license tax on each pump or filler and who is engaged in the business of selling motor fuel and/or kerosene to the general public. (2) Licensed bonded distributors who operate l'E:tail outlets are entitled to the 2 7o refund allowed licensed retail dealers, but not the 1% allowed licensed bonded distributors for collecting the tax. (3) Licensed retail dealers are not required to make bond as tax collectors.
May 19, 1947 Hon. Glenn S. Phillips State: Revenue Commissioner
I have yours of May 15th in which you ask a construction of the amend-

579
ment to the Motor Fuel Tax Act designated as Act 289. Your questions are as follows:
1. Under t~e provisions of the Motor Fuel Tax Act, including the amendment, who are licensed Retail Dealers?
2. The Motor Fuel Tax Act designates Lic:onsed Bonded Distributors as agents of the State for collection of motor fuels and/or kerosene taxes for which th:oy are allowed to deduct one per cent ( 1 cf<,) of the tax collected to compensate them for losses and expenses incurred in collecting the tax for the State.
The Licensed Retail Dealers Refund Amendment provides that "every person selling motor fuels and/or kerosene at retail shall be entitled to a refund of two per cent (2'/c) of all taxes imposed by the State of Georgia, on any such motor fuels and/or kerosene sold at retail by such persons, to covtt losses in evaporation and expenses in collecting the tax for the State."
Licensed Bonded Distributors may also be retailers of motor fuels and/or kerosene. Are they to get one per cent (1%) for collecting the tax for the State, and also receive two per cent (2%) for doing somtthing that has already been done?
3. 'Vhat sales of motor fuels and/or kerosene are considered "retail" sales and what total per cent can the State }Jay for collecting the tax?
4. "If retail dealers in motor fuels and/or kerosene are to collect the tax for the State, would they be requirbd by law to make bond as a tax collector?
( 1) Your first question as to "who are Licensed Retail Dealers" we quote
.you the following portion of sub-paragraph E of the Act in question and also
thefollowing portion of said sub-paragraph E listed as (1) (d):
" ... (E) Every person selling motor fuel and/or kerosene at retail shall be entitled to a refund of two per cent ( 2%) of all taxes imposed by the Stat:o of Georgia on any such motor fuel and/or kerosene sold at retail by such persons, to cover losses in evaporation and expenses in collecting the tax for the State, subject to the conditions set forth in this sub-section...."
". . . No refund under this sub-section shall be allowed to apply on any sale for resale. Nor shall any refund under this sub-section be allowed to any person, firm or corporation except licensed retail dealers engaged in the business of selling motor fuel and/or kerosene to the general public...."
In addition to that we quot:o you Code Section 92-1103. "92-1103. Filling stations; payment of tax; receipt; commission of tax collector.-Every person, firm, association, or corporation within this State retailing or wholesaling gasoline shall pay a tax of $3 on each pump or filler used in connection with the sale of gasoline. Every person, firm, or corporation liable for the tax herein imposed shall pay the same to the tax collector of the county in which such pump or filler is located at the beginning of each fiscal year, and upon said payment so made the tax collector shall issue or cause to b:o issued to the said person, firm, association, or corporation paying said tax a receipt for each pump or filler so taxed, which said receipt shall be at all times displayed in the filling station or place of business of the person or corporation paying said tax, showing the exact number of pumps or fillers the said person, firm, association, or cor~oration is :n~itled to operate, for which service said tax collectors shall receive a commission of 10 per centum
of the amounts so collected." It would appear that what the law-makHs meant in referring to "Licensed

580
Retail Dealers" is that these dealers have first paid the three dollars ($3.00) on each pump or filler as specified in 92-1103 and must be 1'engaged in the business of selling motor fuel and/or kerosene to the general public."
(2) In answer to your question No. 2 as to whether those Licensed Bonded Distributors who operate retail outlets shall be allowed to collect the one per cent ( 1 o/o) allowE:d Licensed Bonded Distributors and also the two per cent ( 2 o/o ) allowed Licensed Retail Dealers, my answer is in the negative. They cannot collect both the one per cent ( 1 '7o) and the two per cent (2 '7o), but they are authorized to collect the two per cent (2 o/o).
Code Section 92-1402 defines "Distributor". If this distributor sells to retail dealers he is required to collect the taxes in which event he is allowed a one per cent (1 o/o) dE:duction of his collections for the expenses incurred. The Retail Dealer in turn is allowed a refund of the two per cent (2%) "to cover losses in evaporation and expenses in collecting the tax for the State." Ordinarily, the Retail Dealer does not collect the taxes for the State for that is the duty of the distributor; however, it is presumable that hE: does incur losses due to evaporation, hence he would be entitled to the refund.
On the other hand, if the distributor operates his own retail establishments he is not selling to himself when he places the motor fuel in the various tanks and, therefore, he would not necE:ssarily be under the obligation of collecting the taxes when he placed the motor fuel in the tanks; however, he must pay these taxes to the State as he makes the retail sales. The provision of the Act in question authorizing the two per cent (2 o/o) refund to cover losses in evaporation and expensE:s in collecting the tax would apply to him as a retail dealer.
(3) Your question No. 3 is answered in sub-paragraph E (1) (d) in that '"retail" sales are the sales made by such "Retail Dealers engaged in the business of selling motor fuel and/or kerosene to the general public." The remainder of question No. 3 is answered in the answer to question No. 2.
(4) Answering question No. 4: I know of no law which requires retail dealers of motor fuE:l and/or kerosene to make bond as tax collector.
PUBLIC REVENUE-Motor Fuel Taxes The 2o/o refund allowed to licensed retail dealers under the Motor Fuel Tax Act may not be paid until the funds are appropriated by the General Assembly.
August 5, 1947 Hon. Glenn S. Phillips Commissioner of Revenue
I am pleased to acknowledge your lE:tter of July 30th, in which you state the following:
"House Bill No. 229, approved March 28, 1947, provides for a refund of two per cent (2t;!o) to retail dealers of motor fuel and/or kerosene; app,lication for refund is made to the Commissioner of Revenue and permits are issued by the Commissioner for refund, after a compliance with other provisions of thE: Act; a certification of the amount of refund due is presented to the. State Auditor, who draws a warrant for the certified amount on the State Treasury in favor of the person claiming the refund. No money is appropriated by the Act for the payment of the refunds, which are allowed to cover losses in evaporation and expenses in collecting the tax for the State....

581
"Please give me your official opinion at the earliest possible date as to whether or not the refunds providE::d under House Bill 229 can be legally paid from the State Treasury."
As your letter points out, House Hill No. 229 approved March 28 1947 while providing for a refund of 2 '7o to retail dealers of motor fuel 'and/o; kerosene, fails to appropriate funds for the payment of such refunds. It would be necessary for the Legislature to pass an appropriation act before money could be withdrawn from the State Treasury. Paragraph 9 of Section 7 of Article 3 of the Constitution of Georgia provWes:
"No money shall be drawn from the Treasury except by appropriation made by law."
The above provision of the State Constitution would prevent the payment of the 2o/o refund to retail dealers since the Legislature has failed to appropriate any funds for the payment thereof. It was an apparent oversight on the part of the Legislature in not providing such an appropriation since the Act granting the refund and setting forth the procedure in relation thereto clearly evidences an intention on the part of the General Assembly to grant relief to retail dealers to cover loss by evaporation and expenses incurred in connection with collecting the State tax on motor fuel. However, since the Legislature failed to make an appropriation to pay these refunds, I have no othE::r course open to me than to rule that the Constitution of Georgia prohibits the payment of any funds out of the State Treasury without an appropriation act authorizing such payments.
It should be pointed out that in 1946 (Ga. L. l946, pp. 19-24) when the Legislature authorized the refund of a portion of' taxes when such gasoline was used solely for agricultural purposes, it also amended tht General Appropriation Act of January 29, 1943, and Section (9) thereof as follows:
"including adequate funds to pay refunds under the farm tractor gasoline
tax refund Aet." The above amendment to the General Appropriation Act was approved
January 31, 1946. (See, Ga. L. 1946, pp. 8-9).
It is to be regretted that the Legislature in 1947 in passing the refund statute for the benefit of retail motor fuel dealers did not also amend the General Appropriation Act as it did in 1946 in reference to gasoline used for agricultural purposes, and appropriate money for the payment of such refund claims. I cite the agricultural gasoline exemption act, together with the related amendment of the General Appropriation Act, to show why the agricultural exE::mption refunds are being paid by the Commissioner of Revenue. If the Legislature in 1947 had followed the same course as it did in 1946 and amended the General Appropriation Act, then refund payments to retail gasoline dealers would be in order. We are helpless to make appropriations from the State Treasury. This can be done only by the General Assembly in accord-
ance with the Constitution. In order to avoid confusion on this matter, it also becomes proper for me
to point out why the distributors are receiving a 1 o/o allowance to cover losses and expenses incurred in collecting motor fuel taxes for the State. No doubt some will wonder why the distributors are entitled to this 1 o/o allowance when we are holding that the retail dealers cannot _be paid due to an oversight. of the Legislature. The distributors receive their 1 o/o allowance under Sectwn
92-1407 (c) which provides as follows:

.582
"At the time of rendering such report, the distributor shall pay to the Comptroller-General the tax or taxes imposed by this Chapter on all motor fuel and/or kerosene sold or used in this State during the next preceding
calendar month less an allowance of 1 '7o to cover losses and expenses incurred
.in collecting the tax for the State: Provided, this allowance shall not be dE:ductible unless payment of tax is made on or before the 20th day of the month as hHein required."
It should be noted that the allowance of 1 '7o payable to distributors is de-
ductible before the payment of ,the tax is actually made to the State. Therefore, it is not necessary to have an appropriation in order to pay this allowance because of the fact that the deduction is made prior to the time the tax is covered into the State Treasury. This is not true however, in connection with the allowance of 2% payable to retail dealers, since the latter Act requires the tax to be paid to the State and thereafter to be n;funded from the State Treasury when the requirements of the Act are fully complied with. In this connection, the amendment approved March 28, 1947, to Section 92-1407 provides as follows:
"The above conditions having been fully complied with, the Commissioner of Revenue shall determine the amount of the refund due on such application, and shall certify such amount to the State Auditor. The State Auditor shall thereupon draw a warrant for such certified amount on the Treasurer of the State in favor of the person claiming such refund, and the Treasurer of the State shall thereupon make payment of same to such applicant."
So it is clear that in the case of the allowance to the retail dealer the refund is to be made out of the State Treasury, whereas the allowance to the wholesaler or distributor is made prior to the time the tax is paid to the State. In the first instance an appropriation by the Legislature is necessary to pay the refund, while in the latter case no such appropriation is necessary since the allowance is deducted prior to the payment of the tax to the State.
I have also carefully examined Section 92-8436 (Ga. L. 1937-38, Ex. Sess., pp. 77-94) to detE:rmine if this general refund statute would apply here. This statute provides in part as follows:
"There is hereby appropriated from the proceeds of every tax and license imposed by law a sum sufficient to refund to taxpayers any and all such taxes which may be determined to have been erroneously or illegally assessed and collected from such taxpayers under the laws of Georgia, ..." (Emphasis supplied).
The above statute applies only to taxes which have beE:n erroneously or illegally collected from taxpayers, and would not apply where the refund sought to be collected was not based upon an erroneous or illegal collection by the State. The retail motor fuel dealer has not made an erroneous or illegal tax payment into the State TrE:asury, so for this reason he would not be entitled to seek a refund by virtue of this appropriation provision.
I have made a very careful study of this question with the hope that some way might be found by. which these refund payments could be made to the retail dealers. At every turn of the way, however, we are always confronted with the Constitution which says that "no money shall be drawn from the Treasury except by appropriation made by law", and until the Legislature makes such an appropriation there is no way in which these refund~ can be made. It is my recommendation that this matter be immediately brought to the attention

of the Legislature when it convenes in order that. this oversight on its part may: be remedied.

PUBLIC REVENUE-Motor Fuel Taxes (Unofficial)
A municipal corporation is not exempt from payment of the motor fuel. tax.

Hon. Zelma R. Bradley

September 3, 1947

City Clerk

Warner Robins, Georgia

This will acknowledge your letter of August 26, in which you ask the

primary questions as to whether or not municipalities are exempt from pay-.

ment of tax on gasoline, and if they are what would be the procedure in get-

ting such exemption or the refund of such tax paid.

The Court of Appeals of Georgia held in the case of Sloan v. Polk County,

70 Ga. App. 707, that a county is liable for tax on gasoline purchased and used

by the county under the Motor Fuel Tax Law of 1937 (Ga. L. 1937, pp. 167,

174) as amended in 1943 (Ga. L. 1943, p. 339).

.

I find no provision in the Motor Fuel Tax Law exempting a municipality.

from payment of tax on gasoline, the only exemption being to the United

States Government and its agencies.

I would suggest that you read the decision in the above cited Sloan case,

which will give you the basis upon which the court placed its decision.

PUBLIC REVENUE-Motor Vehicle License (Unofficial) A veteran's certificate of exemption does not relieve the holder fr.om. payment of the motor vehicle license tag fees.
November 29, 1945
Hon. Worley Adams Royston, Georgia
Your letter of November 19th received. You state that your client is a veteran, and that he wishes to engage in interstate trucking business and desires to know whether or not he will be
liable for State taxes. A veteran's certificate of exemption issued by the State Revenue Com-
missioner would not relieve a veteran from purchasing a proper license tag for his vehicle used in this State. The motor vehicle license tag fees are not imposed upon the privilege of "conducting a business or peddling" as described in the law providing for a veteran's exemption. The tag fees for operating a motor vehicle are classified as license fees, rather than a tax imposed upon the
privilege of conducting a business.

584
PUBLIC REVENUE-Occupation Taxe$ (Unofficial) A non-resident physician, before practicing in GE:orgia, must obtain a license from the State Board of Medical Examiners and pay his professional tax.
October 24, 1945 Hon. Mosely Hogan Tax Collector, Lincoln County Lincolnton, Georgia
This will acknowledge your letter of October 18, in which you ask: "If a physician living in South Carolina is subject to professional tax in Georgia, when his office and most of his practice is in South Carolina, but does considerable practice in Georgia?"
For a physician, whether a resident of Georgia or some other State, to legally practice his or her profession in Georgia a license must first be obtained from the State Medical Board and the validity of a license granted by the Medical Board is contingent upon the payment of an annual State professional tax.
Section 9!:-1909 of the Code of Georgia of 1933, annotated, provides: "Each and every practitioner of law, medicine, osteopathy, ... or architect, charging for their sE:rvices as such, shall pay $15, and the validity of their licenses is made contingent upon the payment of the tax herein provided. No municipal corporation or county authority shall levy or collect an additional tax on the professions, businesses, or occupations enumerated above. Such tax to be collected as other license or occupation taxes are collected." It, therefore, appears that a physician living in South Carolina and practicing his profession in Georgia would be required to obtain a licE:nse from the State Medical Board and pay his annual professional tax, as provided by law, before he could legally practice in Georgia.
PUBLIC REVENUE-Occupation Taxes (Unofficial) A municipal corporation may charge only one license tax for an insurance agent representing one company, although he writes morEo than one type of insurance.
November 1, 1945 Hon. S. S. Kerr, Assistant Treasurer Shelby Mutual Casualty Company Shelby, Ohio
Your letter of October 18th, in which you request my opinion as to whether various municipalities within the State of Georgia could make your company pay two privilege license fees in the same city for the same agent, because of his writing more than one type of insurance, is acknowledged.
Under Part IV of the Code of 1933, Title 92, dealing with insurance companies, agents, and adjustmEont bureaus, the law of Georgia with respect to license fees charged by the State is set forth with particularity. I quote you Code Sections 92-2501 through 92-2506:
"92-2501. Local life, fire, marine, accident, indemnity, fidelity, etc., insurance agents.-Every local insurance agent, solicitor or subagent for any rEosident or nonresident life, fire, marine, accident, casualty, liability, indemnity,

585
fidelity, bonding or surety insurance company doing business in this State, shall pay $10 to the Insurance Commissioner, for each county in which said agent, solicitor, or subagent shall transact or solicit business.
"92-2502. Local assessment, industrial, live-stock, or cooperative insurance agents.-Every local insurance agent, solicitor or subagent for any resident or nonresident assessment life insurance company, or industrial life, accident, or sick-benefit insurance company, live-stock insurance company or fire and storm cooperative assessment fire insurance compani~s doing business in this State, shall pay $10 to the Insurance Commissioner for each county in which said agent, solicitor, or subagent shall transact or solicit business.
"92-2503. Traveling, special, or general life, fire, marine, accident, indemnity, fidelity, etc., insurance agents or managers.-Each and every general, special, traveling, State, or district agent, manager, or assistant manager, by what~ver name he may be designated in his contract, of any resident or nonresident life, fire, marine, accident, casualty, liability, indemnity, fidelity, bonding or surety insurance company, doing business in this State, shall pay $100 to the Insurance Commissioner, whose receipt shall authorize the person named therein to go into any county in the State without the payment of an additional tax.
"92-2504. Traveling, etc., agents of assessment, etc., companies.-Each and every general, special, traveling, State, or district agent, manager, district manag~r, assistant manager, superintendent, or assistant superintendent, by whatever name he may be designated in his contract, of any resident or nonresident assessment life insurance company, or industrial life, accident, or sickbenefit insurance company, or live-stock insurance company, doing business in this State, shall pay $100 to the Insurance Commissioner, whose receipt shall authorize the person named therein to go into any county in the State without the payment of an additional tax.
"92-2505. Insurance adjustment bureaus.-All adjustment bureaus employing adjusters shall pay a tax of $50 for each ptrson who adjusts any loss, to the Insurance Commissioner, whose receipt shall authorize the person named therein to go into any county in the State.
"92-2506. Insurance adjusters.-Each and every person not connected with an adjustment bureau, who adjusts insurance losses, shall pay $50 to the Insurance Commissioner, whose receipt shall authorize th~ person named therein to ~o into any county in the State: Provided that this tax shall not apply to local insurance agents who adjust losses without remuneration."
I make reference to the case of Brannan v. Harrison, 172 Ga. 669, in which the constitutionality of these particular code sections has been upheld by
the Supreme Court of our State. I am of the opinion that a municipality charging a lic~nse fee for an in-
surance company or its agent to write insurance within the corporate limits would be required to restrict itself to demanding only one license fee of each person or company writing insurance, regardless of the various types of ins~r ance written. I have had one of my assistants investigate the method the C1ty of Atlanta, Georgia, uses in determining this questi?n. I find that on~ qualified as an insurance agent can write all types of msurance by securmg one license. I further find that the City of Atlanta applies this rule under the
following circumstances: Where one repr~senting a Company that writes fire, casualty and all other

586
types of insurance, applies for a license and pays the fee therefor, such person is required to pay only one fee for the writing of any and all types of insurance, provided the insurance written is taken in one company.
On the other hand, if one person represent~d several various companies, each company writing a different type insurance, the person would be required to have a separate license to write the insurance for each separate company represented by him, and a person repres~nting various companies writing the same type insurance would be required to have a license for each company he represented.
I do not believe that there is any possibility of your being obliged to pay two privilege license fees in the same city simply because you are writing more than one type of insurance. The license issued by a city would cover all types of insurance being written by you.
The statements made above apply only to license fees for doing business. I, of course, am not familiar with the various charters of Georgia cities, but a city's method of demanding a license fee for doing business must be in accord with the laws of general application. The license issued by a city to an individual or to a corporation maintaining an office in the city for the purpose of doing an insurance business, would include all types of insurance done by that person or corporation, and does not apply to the various types of insurance.
PUBLIC REVENUE-Occupation Taxes (Unofficial) A person leasing counter space in vai:ious stores, on a gross sales basis, for the sale of hosiery is liable for the chain store tax.
January 5, 1946 Hon. Harold Karp Attorney at Law Atlanta, Georgia
This will acknowledge yours of December 31, 1945 in which you state you represent a client who leas~s certain departments, usually counter space only, in various stores throughout the State of Georgia for the sale of ladies' hosiery. You request an opinion as to whether this client is subject to the tax for chain stores for counters or departments which are leased, which said departments are leased on a basis of gro~s sales.
Under the Chain Store Tax Act, as codified in Chapter 92-16 of the Georgia Code Annotated, the term "store" as used in said statute is defined by Section 92-1604 "to mean and include any store or mercantile establishment, whether stationary or traveling by motor, either of domestic or foreign ownership, in which any goods, wares or merchandise of any kind are sold either at wholesale or retail, or distributed." There are certain exceptions to this definition not here material. However, a store is defined by Webster as any place where goods are sold, either by wholesale or retail. See Salmon v. Pioneer Cooperative Co., 21 Fla. 37 4; Martin v. City of Portland, 17 A. 72; Petty v. State, 22 S. W. 654. And in the case of Montgomery Ward & Company v. Sta~e, 169 S. W. 2d, 997, it was said that the test of a "store" is whether sales of goods are made. Under these authorities I am clearly of the opinion that your client is subject to the payment of the chain store tax as levied in Chapter 92-16.
The fact that these countus or departments are leased on a gross receipts basis does not alter the liability of your client for the payment of the tax.

587
~e~tion 92-1605 does not make ownership of the business an essential for the mc1dence of the tax. This section applies to a chain of stores whether owned operated or maintained, directly or indirectly under the sam6 general manage~ ment, control, supervision or ownership.

PUBLIC REVENUE-Occupation Taxes
.< 1) A non-resident manufacturer of electrical engines selling or dealing m such machinery in Georgia must pay a State license tax of $100 and $10 for each agent for each county in which the agent may do business. (2) In absence of statutory definition, "electrical engine" must be given ordinary meaning.

Hon. B. E. Thrasher, Chief Clerk

March 19, 1946

]"roperty & License Tax Unit,

This will acknowledge yours of the 14th instant with which you enclosed

letter of Mr. V. P. Tucker, and request my opinion upon the questions set

forth in Mr. Tucker's letter.

Mr. Tucker states that he desires to qualify as the Agent of several elec-

trical 'manufacturing companies located in other states for the purpose of

selling their merchandise. His letter does not state what kind of merchandise

he will deal in, but it is assumed that he will sell electrical E:oquipment, engines

and supplies. He desires to know the amount of business license tax that is

imposed on this type of agency; the meaning of "electrical engine" as used

in Section 2, Paragraph 72 of the General Tax Act (Section 92-1308, Georgia

Code AnnotatE:od); and whether this section and paragraph applies to the above

agency.

Sufficient facts are not given in Mr. Tucker's letter upon which to base a

very intelligent ruling. However, if Mr. Tucker intends to act as the agent of

a manufacturer in selling electrical engines, I am of the opinion that this

section and paragraph of the General Tax Act would apply and his company

would be liable for the paymE:ont of an annual license fee of $100.00 and to

qualify as provided in said statute. Also, there would be a license fee of $10.00

for each agent that the company employs in this State "for each County in

which the said agency may do business".

The phrase "electrical engines" occurs in said statute as follows: "Every

manufacturer of reaping, mowing, or threshing machines, gas, electrical or oil

engines . . sE:olling or dealing in such machinery by himself or his agents in

this State ... shall pay $100.00 annually to the Comptroller General (now

the State Revenue Commissioner) on the first of January each year, or at

the time of commencement of business, for the license fee for the privilege

of doing business in this State". The Legislature does not specifically define "electrical engines" as used

in the statute and these words must, thereforE:o, be given their ordinary mean-

ing. According to Webster's New International Dictionary, Second Edition,

"electrical" means "electric", and "electric" means "operated or heated by an

electric current or by an electric motor; as an electric iron, toaster, washing

machine, 6 tc.", and the word "engine" means "any mechanical contrivance or tool; also machinery or apparatus". I am, therefore, of the opinion that the

phrase "electrical engine" means an engine, machine or apparatus whose. mo-

588
tive power is electricity, or a machine or apparatus which either produces electricity or receives, converts or transmits electric :nergy for the operation of other equipment, devices or apparatus.

PUBLIC REVENUE-Occupation Taxes An engineer employed by a corporation on a salary basis is required to pay an annual license tax.

Hon. M. E. Thompson

March 20, 1946

State Revenue Commissionu

This will acknowledge yours of the 18th instant, enclosing letter of Hon.

Carl W. Evans, President of the Georgia Society of Professional Engineers,

and requesting an opinion as to whether civil, mechanical, hydraulic or elec-

trical engineers who "are employees of corporations or compani:s" and who work for such companies upon a salary basis, are liable for the tax upon pr~

fessions as codified in Section 92-1909 of the Georgia Code Annotated.

This Section reads as follows:

"Each and every practitioner of law, medicine, ost:opathy, chiropractic,

chiropody, dentistry, optometrist, masseur, public accountant, or embalmer,

and every civil, mechanical, hydraulic, or electrical engineer, or architect, charg-

ing for their services as such, shall pay $15, and the validity of their licenses is

made contingent upon the payment of the tax huein provided. No municipal

corporation or county authority shall levy or collect an additional tax on the

professions, businesses, or occupations enumerated above: Such tax to be

collected as other license or occupation taxes collected."

It will be obsuved that this Section, in so far as engineers or architects

are concerned, levies the tax upon 10ach engineer or architect of the kind

named who charges "for their services as such". This indicates an intention

on the part of the law makers to impose the tax as much so on a person who is

employed as an engineer upon a salary by a company as it does upon an engi-

neer who is engaged in the private practice of his prof:ssion and charging a fee

in each instance for services performed.

It is true that several years ago an opinion was rendered making a distinc-

tion between the tax as applied to accountants who were employed on a salary

basis, and those who were actually practicing as "public" accountants. In this

opinion the distinction rested upon the fact that the words "public accountant"

were us:d in the statute, and it was held that each accountant working upon

a salary for a particular company was not practicing as a public accountant

in that he was not holding himself out to the public as being available for the

practice of his profession in general. The statute was held not to apply so as

to tax accountants working for companies for a salary.

No such distinction is authorized to be made or drawn with respect to

engineers or architects, as the word "public" does not modify the words civil,

mechanical, hydraulic or electrical engineus.

I am, therefore, of the very definite opinion that if a person is qualified

as an engineer under the laws of this state, holding a license to practice as

such, and charges for his services as such, either being compensated on a

salary basis or on a fee or other basis, he is subject to th: payment of the

tax prescribed in Section 92-1909.

589

PUBLIC REVENUE-Occupation taxes (Unofficial)

(1) The tax on dealers in pistol cartridges is governed by Par. 85 of the General Tax Act of 1935.

(2) .Par. 85 and Par. 85 (a) of the General Tax Act of 1935 being inconsiste~t as to the tax on dealers in rifle cartridges, Par. 85 (a) con-

trols, bemg the last expression of legislative will anti more favorable to

the taxpayer.



Hon. Joseph G. Faust

March 26, 1946

County Attorney

Greensboro, Georgia

This will acknowledge yours of the 20th instant directing my attention

to paragraphs 85 and 85 (a) of the General Tax Act of 1935 and requesting

my opinion upon the following questions:

1. Are dealers in pistol cartridges governed wholly by section 85?

2. In towns of less than 2500, which section [85 or 85 (a)] applies to

rifle cartridges?

Paragraph 85 of the General Tax Act (Section 92-2009, Georgia Code

Annotated) provides:

"Pistols. Upon {;ach and every dealer in pistols, or who deals in pistol

cartridges or rifle cartridges, dirks, bowie-knives, or metal knucks, for each

place of business in this State, in or near towns or cities of 2,500 population,

or less $15.00; in or near cities of over 2,500 population, and less than 10,000,

$25.00; in or near cities of 10,000 population or Jess than 50,000, $50.00; in

or near cities of 50,000 and above population, $100.00."

Answering question one in the light of this statute, I am of the opinion

that the tax payable by a dealer in pistol cartridges for each place of business

in this State in or near towns or cities of 2,500 population or less, a tax of

$15.00 is imposed for each place of business.

Paragraph 85 (a) of this Act (Section 92-2016 Georgia Code Annotated)

provides:

"Upon each and every dealer in rifle and rifle cartridges and gun shells

for each place of business in this State in cities of over 200,000 inhabitants,

$20.00; in cities from 75,000 to 200,000, $15.00; in cities of from 40,000 to

75,000, $10.00; in towns and cities under 40,000, $5.00; provided that any

dealer locat{;d within a radius of three miles of the incorporate limits of any

of said towns or cities shall take the same rate of taxation as the town or city

located nearest said dealer. Provided, that as to the sale of gun shells solely, the

tax on persons, firms, or corporations in towns of 3,500 or under the tax shall

be $1.00." It will be noted, as was done by the editors of the Georgia Code Annotated,

that as to dealers in rifle cartridges paragraph 85 (a) is inconsistent with para-

graph 85, as the scale of taxes is different in amount. We must, therefore,

apply thE: rule referred to by the Supreme Court in Gilbert v. Georgia Railroad

& Banking Company, 104 Ga. 412, and Lamar v. Allen, 108 Ga. 158, 164, to the

effect that where two parts of a single act conflict or are inconsistent, the latest

in position stands, as it is presumed to be the last expression of legislative will.

Also, the rule that tax statutes are to be construed most strongly against

the State would likewise apply. Accordingly, I am of the opinion that a deal{;r

in rifle cartridges in a town or city which has a population under 40,000 would

590
be liable for the paym~::nt of only $5.00 for each place of business; and if he dealt only in rifle cartridges, upon the payment of the tax in accordance with the terms of paragraph 85 (a), he would not be subj~::ct to the payment of the tax under Paragraph 85. The tax on a dealer in rifle cartridges in a town of less than 2,500 would be $5.00.
PUBLIC REVENUE-Occupation Taxes A non-resident manufacturer of automobile parts who maintains a warehouse in Georgia from which goods are shipped to customers in Georgia and other states is liable for the state tax upon wholesale deal~::rs in such commodities.
May 31, 1946 Hon. M. E. Thompson State Revenue Commissioner
Yours of May 24, in which you ask an opm10n as to the tax liability of the named Company has been receive:d, a statement of the facts being as follows:
"Several months ago we mailed the Company, located at Detroit, Michigan, who operate a place of business at Atlanta, Georgia, a statement in which we charged them with tax as a wholesale deal~::r in automobile parts, as laid under Paragraph 13 of our General Tax Act.
They maintain a warehouse at the Atlanta addre;:;s and ship goods to their customers located in Georgia and in other States, but they have raised the question as to whether this paragraph covers manufacturers. You will note from the language that Paragraph 13 does not m~::ntion manufacturers but does lay a tax upon wholesale dealers in these commodities, and they sell to wholesale dealers for resale to retail trade, including garages."
The Act of 1935 provides as follows: "Section 2. Be it further enacted by the authority aforesaid, that in addition to the ad valorem tax on real estate and personal property, as required by the Constitution and now provid~::d for by law, the following specific and occupation taxes shall be levied and collected each year after the passage of this Act, beginning in 1936. . . ." "Paragraph 13. Automobile Tires, Accessories, Automobile Radios or Automobile Parts (Wholesale). Upon every wholesale dealer in automobile tires, automobile accessories, automobile radios or automobile parts of any kind whatsoever, the sum of $100.00 for each place of business." The foregoing is an occupation tax. A corporation may have more than one occupation. It may have an occupation as a manufacturer and at the same time have an occupation as a wholesalE:: dealer in its own products or it may have the occupation as a retail dealer in its own products. It has no occupation as a manufacturer in Georgia. Its occupation is selling in large quantities products which have been manufactured elsewhere. The common definition of "wholesale" is "large quantities". In this case the company ships its merchandise to Georgia and sells it in large quantities. It sells it for the purpose of re-sale. I know of no prohibition of a wholesale d~::aler selling exclusively to other wholesale dealers. Clearly the occupation of this company in Georgia is that of a wholesale dealer and it is subject to the tax.

591

PUBLIC REVENUE-Occupation Taxes (Unofficial) A bank may deduct from the market value of its shares of stock returned for taxes, the value at which real estate, or any equity therein, owned by it, is returned.

Darby Banking Company, Inc.

June 8, 1946

Vidalia, Georgia Your le:tter of June 5th received. You request that I inform the tax col-
lector of Toombs County that the law of Georgia permits a bank to deduct from the market value of their capital stock the value of real estate in their return for taxation.

This is a matter which does not come within my jurisdiction, and I would be invading the province of the tax collector and tax assessors should I volunteer to write the lette:r as requested. Any opinion that I should render would be unofficial, and the same would not be binding upon the tax collector, tax

assessors, or any one else, due to the fact that I am not permitted to render official opinions unless requested to do so by the Governor or heads of State departments. Howeve:r, it is a pleasure for me to furnish information regard-

ing the question asked.

Section 92-2406 of the Code of 1933 provides in substance that no tax shall be assessed upon the capital of banks or banking associations organized under the laws of the State or the United States, but that the shares of the stockholders of the banks or banking association, whether resident or non-resident owners, shall be taxed in the county where the banks are located at their full market value:, including surplus and undivided profits, at the same rate provided by law for taxation of other property in the hands of private individuals. The Section also provides that when real estate is fully paid for, the market value at which it is returned for taxation may be deducted from the market value of the shares returned for taxation, and if the real estate is not fully paid for, only the value at which the equity owned by them is returned for taxation shall be deducted from the market value of the shares of stock of

the bank.

Section 13-203 of the Code provides the method of assessing banks where branch banks are operated in connection with the parent bank. Under this Section, the parent bank is required to set aside to the branch bank its portion of the capital to be taxed on the basis of the deposits of both the parent and branch bank. The Section provides that re:al estate owned or held by branch banks shall be taxed in the county, municipality, and district where located, as other real estate is returned and taxed. The value of the real estate as returned for taxation shall be deducted from either the value of the capital of

the parent bank or the re:spective branch bank.

Chief Justice Russell in the case of City of Moultrie v. Moultrie Banking Company, 177 Ga. 714, in upholding th(J constitutionality of the Sections of the law to which I have hereinabove referred, states as follows:

"If banking institutions comply with the provisions of this act, they do
not e:scape taxation upon their real estate at the same rate as their fellow
taxpayers in the different counties in which the real estate is located. Having paid the taxes upon its realty once, it would be violative of the constitu~ion to tax th~ real estate a second time in the county where the bank is located."

592
The op1mon in the City of Moultrie case outlines the procedure for the assessment of tax against a bank as the returning by the bank of the market value of the shares of the stockholders of the bank and deducting therefrom the amount at which the real estate is rE:turned separately, and then assessing the same on the same basis as other property of other taxpayers are assessed.
PUBLIC REVENUE-Occupation Taxes (Unofficial) An employee doing electrical work for a municipality is not liable for the state license tax on electrical contractors.
June 19, 1947 Hon. T. H. Stevens, Jr. Recorder, City of Ellaville Ellaville, Georgia
This will answer your recent lettE:r requesting my opm10n as to whether an employee of the City of Ellaville, who does electrical work for said City has to pay the state tax of $25.00 required of electrical contractors.
Code Section 92-902 provides as follows: "92-902. Electrical contractors.-All electrical contractors shall pay $25 for each county in which they do or offer to do business. The term "electrical contractor" as used in this section shall be held to meal). each ptrson, firm, or corporation who shall engage in installing, repairing, and/or selling electrical wiring or equipment." Therefore, in view of the above, it is my opinion, that the city employee who is doing electrical work for the City of Ellaville does not have to pay the $25.00 special licE:nse, because such license is required only of electrical contractors who are in the electrical contracting business.
PUBLIC REVENUE-Occupation Taxes (Unofficial) ( 1) The authority of a municipality to impose a business license tax is derivE:d from its charter. (2) Payment of a state business license tax does not exempt from the license tax imposed by a municipality for doing business therein.
June 27, 1947 Hon. G. W. Covington, Manager Monarch Elevator & Machine Co., Inc. Greensboro, North Carolina
This will acknowledge your letter of June 18, in which you inquire about municipal and state license requirements.
Question No. 1: "We would like to havE: a copy of the Georgia law which gives municipalities the right to require any business organization to purchase a license at cost of $100.00 to fulfill -any contract in the municipality regardless of whether the job to be done is large or small."
There is no particular Georgia law which gives municipalities the right to require any business to purchase a license in order to do business in the city. Each and every city or town in the State of Georgia opE:rates under a charter granted to it by the Legislature and probably no two are identical. By each charter there is a grant of power which permits such city or town to

593
license businesses. In general, this power arises under two entirely diffe:~:ent theories. Cities are given the right to regulate business in their charters under a general welfare or police power clause, which may be broad in its nature or restricted in its nature, depending upon the particular charter. The other theory is derived from the power of taxation. Under this power, which is always purely for the purpose of raising revenue to meet the needs of the city, a city or town may be given the power to license any business:
So long as the city or town exercises the above powers by virtue of any ordinance passed by the City Council, the only question which would arise is whether or not the ordinance is in conflict with either the State or Federal Constitutions. There are numerous cases on this question and it appears that the present law of this State is best expressed in the case of Jewel Tea Company v. City Council of Augusta, 59 Ga. App. 260, in which the court quoting from a North Carolina case stated:
" 'It is a general and undisputed proposition of law that a municipal corporation possesses, and can exercise, the following powers, and no others: first, those granted in express words; second, those necessarily or fairly implied; third, those essential to the declared objects and purposes of the corporation-not simply convenient but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied.... An ordinance can not legally be made which contravenes a common right, unless the power to do so be plainly conferred by a valid and competent legislative grant . . .'" State v. Gulledge, 208 N.C. 204 (179 S.E. 883.)
Question No. 2: "We would also like to inquire if the State of Georgia has what is known as a State-wide license which an organization may pay and thereby obtain authority to do business throughout the state without incurring a license liability of $100.00 to each municipality in which it may do
business." The State of Georgia does not have any Statewide license which would
exempt an organization from incurring a license liability in any municipality in which it may do business. However, the State does require all corporations to pay a tax for the privilege of doing business within the State. A schedule of these fees for domestic and domesicated foreign corporations is contained in Section 92-2401 of the Georgia Code of 1933 and a similar schedule for foreign corporations is contained in Section 92-2403. These schedules are also published in the attached pamphlet issued by the Department of Revenue and are found on page 8. In addition, all domestic and domesticated foreign corporations are required to make reports to the Department of Revenue. This is shown on page 17 of the same pamphlet. There are also certain reports which should be made to the Secretary of State, including a corporation registration
fee, as shown on page 20 of the pamphlet. Information as to income taxes is shown on page 22.

..594
PUBLIC REVENUE-State Revenue Commissioner (Unofficial) It is the duty of the State Revenue Commissioner to issue executions against railroads and power companies for unpaid county-wide school taxes.
March 14, 1946 Hon. E. H. Goldin County School Superintendent Buchanan, Georgia
Your letter of March 11th received. You state that a railroad and a power company have failed to pay their county-wide school tax, and request that I advise whether or not it is the responsibility of the county board of education or the State Revenu.; Commissioner to collect these taxes.
Section 92-2701 of the Code of 1933 required railroad companies to return their property for taxation to the State Revenue Commission. Section 92-2303 of the Code of 1933 requires that special franchises shall be rE:turned to the State Revenue Commissioner for taxation. Section 92-2301 of the Code defines special franchises, and among them is the furnishing of electric lights or power.
Section 92-2308 of the Code providE:s that tax due to school districts or counties on all franchises shall be collected and enforced as provided by law for collection of taxes due by railroad companies.
Under Section 92-2705 if a railroad company shall refuse to pay the amount of taxes due a county it shall be the duty of the State Revenue Commissioner to issue an execution for collection of same. The State Revenue Commissioner would, therefore, issue any execution needed for the collection of tax against the power company.
Under the School Act of 1919 each and every county composed one school district, and the district was confided to the control and management of the county board of education. The same exist under the Constitution of 1945. Our courts have held that under the 1919 Act the county board was the agency through which countiE:s act in school matters. See Burke v. Wheeler County, 54 Ga. App. 81; Board of Education of Houston County v. Hunt, 29 Ga. App. 665; Smith v. Board of Education of Washington County, 153 Ga. 758; Ayers v. Board of Education of Hart County, 56 Ga. App. 146.
The Supreme Court has held that the county is the proper authority to collect school taxes. See Palmer v. Burke County, 180 Ga. 478.
It is, therefore, unnecessary that any suit be filed for the collection of school tax. If the taxpayers mentioned continue to fail to pay the tax, the tax collector of your county should call upon Mr. M. E. Thompson, State Revenue CommissionE:r, and request that he issue executions for the unpaid tax. The executions would be turned over to the sheriff for collection. I would suggest that you seek the advice of the county attorney regarding such uncollected taxes.

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PUBLIC REVENUE-Tax Collec~ors (Unofficial) A tax receiver may correct his tax digest so as to make it speak the truth at any time when it is in his control.

OctobE>r 8, 1945

Hon. Jack G. Tarpley, County Attorney

Union County

Blairsville, Georgia

Your letter of October 3rd received. You state that your tax receiver

has in his possession the tax digest and that it has been discovered that the

Clerk in listing taxpayers omitted to list homestead and personal exemptions

to which certain taxpayers were entitled, and request that I advise whether

or not the tax recE>iver has power to correct his digest so as to make the same

speak the truth.



If the claim for homestead and personal exemption from taxation was

made prior to April 1, 1945, and the applicant was eligible, and the application

was approved by the tax receiver, the tax receiver was required by Section

92-228 to transfer same to the county board of tax assessors for final determi-

nation by said board as to eligibility and value as provided by law. Where

the claim for exemption was made prior to April 1, 1945, and bE>cause of error

on the part of the tax receiver or his clerk, the application for exemption

was not referred to the tax assessors, it would be proper for the tax receivE!r

to call attention of his error to the tax assessors and have the tax assessors

approve of the exemption and valu: and for the tax receiver to correct the

digest so as to make it speak the truth and so as to give to the taxpayers the

exemption to which they were entitled. The tax receiver has power and

authority, and in fact, should make all necessary corrections in his digest so as

to make it speak the truth, and hE> may do this at any time while he has the

digest in his control. The fact that the digest was sent to the Revenue De-

partment for approval, and was returned to the tax receiver for correction

would not deprive the tax receiver of the right and duty to correct his digest

of any other errors that he may find to exist.

PUBLIC REVENUE-Tax Collectors A tax commissioner may not be deprived by a special act of the 10o/o commission on collections above 90 o/o of the total tax digE>st of the county
to which he is entitled by a general law.

March 14, 1946

Hon. M. E. Thompson
State Revenue Commissioner In reply to yours of March 6th in which you ask: Is the Tax Commissioner of Pickens County entitled to the 10 per cent
commission of his collections above 90 per cent of the total tax digest of that

county, as provided by Code Section 92-5304 '? The office of Tax Commissioner of Pickens County was created by the
Act of 1943, page 1094, E>t seq., which Act also fixed his compensation as

follows:

.

.

.

"Section 4. Be it further enacted that all fees, commissions, and al~ ~ther

compensation allowed to the tax-receiver and tax-collector of Pickens County,

696
Georgia, at the time this Act becomes effective, or that might legally be allowed to such officers thereafter were it not for the provisions of this Act, shall be collected by the tax-commissioner of Pickens County, Georgia, which duties as tre:>.surer are now performed by the commissioner of roads and revE:nues, except fees and commissions on all such taxes as are collected by such tax-commissioner for and on behalf of the State of Georgia."
"Section 5. Be it further enacted that from all taxes collected by said tax-commissioner for and on behalf of the State of Georgia he shall be allowed to deduct therefrom the regular fees and commissions which have heretoforE: been allowed to the tax-receiver and tax-collector, and said tax-commissioner shall remit the remainder of the same directly to the Comptrollor General or other such tax collecting official of the State of Georgia by whatever name called."
"Section 6. Be it further enacted by the authority aforesaid that on the first day of each month after the tax-commissioner of Pickens County takes office the commissioner of roads and' revenues of Pickens County shall pay to him by voucher the sum of one hundred dollars ($100.00) per month; and from this sum so received said tax-commissioner shall pay all clerical hire and all expenses of the office, except postage, stationery, and printing."
Code Section 92-5304 provides as follows: "As far as the tax collectors are concerned, the rates and schedules prescribed by section 92-5301 shall apply upon the first 90 per cent of the ad valorem net digests collected by the tax collector. On all taxes collected in excess of 90 per cent of tho total of taxes due, according to the tax net digest, the tax collector's commission shall be for such taxes 10 per cent of all such collections, irrespective of the above and foregoing schedule and rates. In those counties where the tax collector or tax commissioner as the case may be is paid a salary this said commission shall be paid to the said tax collector above and beyond the said salary."
It will readily be seen that the Code Section is a general Act and that the Act of 1943 is a special Act. This gE:neral law fixes this particular 10 per cent as a part of the compensation of tax commissioners generally regardless of whether they are on a fee basis or a salary basis. This 10 per cent can only be taken away from the tax commissioners by a general Act and can not be taken away from the tax commissioners by any special Act.
Section 4, Paragraph 1, Article 1 of the Constitution of 1945 provides that:
"No special law shall be onacted in any case for which provision had been made by an existing general law."
In the case of Moore et al, v. Howard, Tax Collector, 181 Ga. 605, the court held:
"No law can be passed for a certain subdivision of the State which runs counter to the general law of the State." and also in the case of Stewart v. Anderson, 140 Ga. 31, 32
"If it (the Act under considtration) is a special or local law dealing with a subject as to which provision has already been made by an existing law, then it is in conflict with that section and invalid."
It would, therefore, appear that that portion of the special Act fixing the compensation is valid except where it attempts to take away from the Tax Commissioner any part of the 10 per cent commission on all taxes collected

597
in excess of 90 per cent of the total taxes due, as allowed by Code: Section 92-5304.
For the foregoing reasons, in my opinion, the Tax Commissioner of Pickens County is entitled to the 10 per cent commission of his collections above 90 per cent of the total tax as provided by Code Section 92-5304.
PUBLIC REVENUE-Tax Colle:tors A tax collector is entitled to a commission of 2% o/o on all amounts collected on countywidE: school maintenance and bond tax; to a commission of 2% '7o on the first $18,000 collected on local school district maintenance and bond tax, and 1 ~4% thereafter.
April 4, 1946 Hon. B. E. Thrasher, Sr., Chief Clerk Property and License Tax Unit
You have requested that I give you an official opmwn on the question of what commission tax collectors and tax commissioners are entitled to retain and receive for collecting bond tax levied to retire school bonds.
County boards of education are the agencies through which countie:s act in school matters. Paragraph 1, Section 5, Article 8 of the Constitution of 1945 makes each county a school district and political subdivision. Under the School Act of 1919 (Code Section 32-901) the county was also one school district and political subdivision. The 1919 Act required the county board to divide the county into local districts and each such local district was also a subdivision of the State.
Such political subdivisions were authorized by Code Sections 32-1106 and 32-1108 to levy a tax for school purposes where the people by their vote approved same. The Act required the tax collector to collect and keep separate and distinct from other county funds all funds levied for such political subdivisions.
The General Assembly provided that the tax collector should receive a commission of two and one-half per cent. for collecting county-wide school tax.
Section 32-1114 of the Code requires tax collectors to compute and collect tax levied by local districts and fixes his commission at two and one-half per cent. on the first $18,000.00 and one and one-fourth per cent. on any additional amount collected for school tax for local districts. Section 32-1113 of the Code provided the method for making up tax digest for local districts and required the secretaries of the board of trustees of local districts to furnish the tax collector with a copy of the digest.
The School Act of 1919, Code Section 32-1403, authorized local districts in counties where local school tax was levied to create bonded indebtedness for building schoolhouses. The local school tax, and tax to retire the bonded indebtedness, was levied by the fiscal authorities of the counties levying county tax on the recommendation of the school authorities.
The sections of the Code dealing with the levy of a bond tax and collection thereof do not set forth any machinery for determining the property subject to the tax and fails to specify the commission to be paid the tax collector for collecting the bond tax. The only way for determining the property subject to the bond tax in a local district was to follow the method of making digests as required by the statute for maintenance school funds. The General Assembly

598
by its Act approved February 1, 1946, in Section 20 recognized this procedure and transferred this right and duty of making the digest for the collection of bond tax in local bonded districts to the county board of education.
Section 32-1403 of the Code must be construed in connection with Sections 32-1108, 32-1113 and 32-1114 of the Code. Only districts in counties levying
a a local school tax .could create bonded indebtedness or levy a bond tax. Con-
struing these sections of the Code tog~:;ther, Section 32-1113 and 32-1114 provides the method for determining what property of a local district is subject to local tax for bond issues.
It follows that when the General Assembly contemplated that Sections 32-1113 and 32-1114 of the Code would furnish the method or machinery for determining the taxable property for bond purposes that it did likewise contemplate and intend that the tax collector should receive for computing and c'ollecting bond tax the same commission that he would receive for computing and collecting maintenance tax. Both the maintenance and bond tax would be collected and paid over to the same political subdivision and officers thereof. The two sums added together would determine the rate applicable; two and one-half per cent. on the first $18,000.00 and one and one-fourth per cent. on amounts above $18,000.00 in local districts, and two and one-half per cent. on the total county-wide collections.
Tax levied for educational purposes, for building schoolhouses or retiring debts created in building schoolhouses, being a county tax levied by the fiscal authorities of the county for legal purposes, the tax collector would have been entitled to receive compensation for collecting the same as provided for in Section 92-5301 of the Code as amended, had not the General Assembly seen fit to prescribe a different rate of compensation or fee' for collecting the special school tax. It is a county tax but the General Assembly directed that the tax collector pay same over to the county boards of education and to the secretaries of the local school district, thus requiring that the funds be handled separately and in a different manner from regular county funds.
ThE> Supreme Court in Board of Education of Decatur County v. Drake, 157 Ga. 8, held that a tax receiver was not entitled to commissions on countywide school tax and points out that the General Assembly made a distinction . between the tax collector and tax receiver because the tax collector was required to perform duties in regard to the school tax that did not involve the tax receivers.
While the Constitution and statutes provide that tax levied to retire bonds should be used only for that purpose, it must necessarily follow that the expenses of gathering the tax must first be paid. See case of Mayor and Council v. Board of Education of Waycross, 87 Ga. 22, where the court ruled as follows:
"\Vhere a school tax was leviE>d by town authorities, the law providing that the money so raised should be used only for establishing and maintaining public schools in said town, and making it the duty of the treasurer of the town to recover all said money from the mayor and council; and where by authority of law said mayor and council had appointed a collector of all taxes imposed by them, and provided that he should receive a certain per cent. thereof as compensation for his services, such collector had the right to retain from the school fund his commissions for collecting the same."
A similar ruling was made by the courts of Pennsylvania in Cameron County v. School District, 11 A. 534, 117 Pa. 149.

599
I am, therefore, of the opmwn that tax collectors are entitled to receive and retain a commission of two and one-half per cent. on all amounts collected for maintenance and bond tax where the same is levied throughout the county. I am of the further opinion that tax collectors are entitled to receive and to retain two and one-half per cent. commission on the first $18,000.00 and one and one-fourth per cent. commission on all amounts collected above the $18,000.00 for collecting maintenance and bond tax for local school districts. Since the passage of the 1946 Act and the adoption of the Constitution of 1945 maintenance tax is levied on a county-wide basis and the Act prescribes that the tax collector shall recE:ive two and one-half per cent. on all collections made of such tax.
PUBLIC SAFETY-Department of Public Safety The Act granting a salary increase to "members of the Georgia BurE:au of Investigation" includes only personnel whose assigned duties place them in a position to make a reasonable use of the same powtrs and authority as are possessed by the members of the Uniform Division.
March 4, 1946 Hon. C. A. Williams, Director Department of Public Safety
This will respond to your letter of recent date requesting an opm10n regarding the application of the word "members" as it is used in the last sentence of Section 2 of the Act passed at the recent session of the General Assembly amending the Act crE:ating the Department of Public Safety, and reading as follows:
"The provisions of this section, granting an increase in salary of $25.00 per month, shall also apply to the members of the Georgia Bureau of Investigation."
The Act creating that Department, (Ga. L. 1937, pp. 322-355) established as divisions thereof: (1) A Uniform Division to be known as the Georgia State Patrol; (2) A Division of Criminal Identification, Detection, Prevention and Investigation (now Bureau of Investigation, Ga. L. 1941, pp. 277, 279); (3) A Division to administer the proper licensing of operators and chauffeurs
of motor vehicles. Article II of the Act, which relates to the establishment of the Uniform
Division, prescribes the qualifications, designates the number and rank, and specifies the salaries of the personnel of the Georgia State Patrol. Section 1 of that Article provides in part:
"There is hereby created and established a division of the Department of Public Safety to be known as the Uniform Division, the members of which shall be known and designated as the 'Georgia State Patrol', and who shall wear a distinctive uniform and equipment to be prescribed by the Commissioner of Public Safety." (Emphasis supplied).
From the above and subsequent sections it is apparent that the GE:neral Assembly used the word "members" in Article II with reference to personnel of the Georgia State Patrol, whose qualifications, rank and compensation were fixed by the Act, and thus distinguished them from other employees of the
Uniform Division.

600
Article III of the Act, which authorizes the Commissioner (now Dirr:ctor, Ga. L. 1943, pp. 196-202) with the approval of the Department to establish the Bureau of Identification, and defines its duties, does not specify the qualifications, rank or compensation of personnel in the Bureau nor does it use the term "member" in relation therr:to. The design of the Act was that the Director with the approval of the Department should employ personnel for the Bureau, assign their duties and fix their compensation. As pointed out in your letter, there are now several classifications of employees in the Bureau. These include investigators who are members of the Georgia State Patrol and rr:tain their status as such, but who are assigned to the Bureau for duty; employed investigators not members of the Georgia State Patrol; finger print classifiers; photographers; secretaries; file clerks, and typists.
In an Act approved March 27, 1941 (Ga. L. 1941, pp. 277-279) the General Assembly first used the word "members" with reference to personnel of the Bureau in providing that:
"The members of the Bureau of Investigation shall have and are hereby vested with, in addition to the duties herein provided, the same authority, powers and duties as are possessed by the members of the Uniform Division under the provisions of this Act."
The principal authority thus vested is the power to make arrests for certain offenses, as provided by Section 14 of Article II of the Act of 1937. The word "members", when used in the 1941 Amendment with reference to the Bureau, cannot have the same meaning as in the 1937 Act with respect to the Uniform Division because qualifications, job classifications and compensation of Bureau personnel (except members of the Uniform Division assigned for duty with the Bureau, who already possessed such authority) are fixed by the Director, rather than by the Act; nor is it reasonable to conclude that the General Assembly which failed to define the term, intended to vest arresting powers in typists, file clerks and other employees who perform no duties for the Bureau which would place them in a position to make a reasonable use of such authority. The logical conclusion is that the General Assembly, cognizant of the plan of the Act with respect to the Bureau of Investigation, used the term "members" with reference to those employees of the Bureau to whom the Director delegated duties which would place them in a position to make a reasonable use of the powers conferred by thE: Amendment.
"The statute must be examined as a whole and its different provisions reconciled if possible . . the general scheme and purpose of the legislation is a proper criterion for the construction therE>of." Carroll v. Ragsdale, 192 Ga. 118.
In keeping with the plan of the amended Act, it is understood that certain personnel selected by the Director on the basis of the duties which they are assigned have been issued certificates and credentials designated them as "members" of the BurE:au of Investigation. This collateral construction given the statute by administrative officials is persuasive. Elder v. Home Bldg. & Loan Ass'n, 188 Ga. 113.
When the General Assembly in the Amendment, approved January 30, 1946, (Act No. 484) again used the word "members" with reference to the Bureau of Investigation, it must be assumed it was used with the same meaning as in the Amendment of 1941 for the presumption is that the same meaning attaclaes to a recurring word each time it is used. Epping v. City of Columbus,

601
117 Ga. 263. Such an interpretation achieves the reasonable result of granting the same increase in compensation to those employed personnel of the Bureau who perform substantially the same functions and possess the same power and' authority as the mE;mbers of the Uniform Division assigned for duty with the Bureau who received an increase by the Act and it conforms also with the plan of the Act of 1937 which leaves to the Director, with the approval of the Department, the determination of questions regarding the qualifications, selection and duty assignments of Bureau personnel.
Based upon the foregoing, it is the opinion of this office that the General Assembly, by using the language quoted in th"' first paragraph hereof, referred to personnel of the Bureau of Investigation whose duties assigned by the Director place them in a position to make a reasonable use of the same authority, powers and duties as are possessed by the members of the Uniform Division, and which are vested in "members" of the BurE;au by the Amendment of 1941.
PUBLIC SAFETY-Department of Public Safety The Department of Public Safety may expend funds alloted by the Budget Bureau for the purpose of printing posters and leaflets in connection with a campaign to promote safe driving.
April 8, 1946 Hon. William E. Spence, DirE;ctor Department of Public Safety
I am pleased to acknowledge your letter of April 1st, in which you state the following:
"Please give me an official oprmon on whether or not the Department of Public Safety can participate in a nation-wide safety campaign by expending funds for the printing of oofety posters and leaflets. This is purely an educational program and will carry a credit line of the Department of Public Safety."
While the new Constitution provides that "the powE;rs of taxation over the whole State shall be exercised by the General Assembly for the following purposes only: ... (2) for educational purposes," there is no direct statute authorizing the Department of Public Safety to expend funds for advertising even for educational purposes. (Art. 7, Sec. 2, Par. 1). Of course it is not necessary to have a direct Act of the Legislature authorizing the E;Xpenditures of these funds for the purposes set forth above if. it can be clearly seen from the duties and other powers conferred upon the Department of Public Safety that it was the intent of the Legislature to clothe the Department with such authority. Section 92A-239 of the Public Safety Act provides:
"It shall be the primary duty of the Uniform Division of the Department of Public Safety to patrol the rural and public roads and highways throughout this State, to prevent, detect and investigate criminal acts, and to arrest and apprehend those charged with committing criminal offenses appertaining thereto, "and to safeguard the lives and property of the public.'' (Emphasis
supplied). The above statute clearly makes it the duty of the State Patrol to endtavor
to prevent criminal offenses from being committed on the highways, and in addition to safeguard the lives and property of the public. It SE;ems that an adve~tising campaign designed to promote safe and sane driving would come within the purview of the above statute.

602
Before funds could be spent for advertising matter however, it is my opinion that it must first be determined by the Department of Public Safety in an exercise of its sound discretion in the premises that such advertising for 6ducational purposes should be purchased. Should the .Department of Public Safety exercise its discretion in the affirmative, it would still be necessary to secure an allotment from the Budget Bureau provided such an allotment has not already been set aside for this purpose by that agency.
I am of the opinion that when the above conditions have been satisfactorily performed, the Department of Public Safety has adequate authority under the Constitution and statute herein referred to, to participate in a nation-wide safety campaign by expending funds for that purpose. I understand that the phrase, "nation-wide safety campaign," is restricted only to the State of Georgia insofar as the expenditure of State funds are concerned, and that no funds of this State would be used in any way for advertising purposes or otherwise outside of Georgia.
PUBLIC SAFETY-Department of Public Safety The State Department of Public .Safety should not undertake to sE:ttle the title to stolen property seized by it but should turn the property over to the proper court for disposition.
July 9, 1947 Captain George T. Bagby, Director Georgia Bureau of Investigation Department of Public Safety
We have your letter of June 30 requesting an opinion as to your authority with reference to the impounding of stolen vehicles.
Georgia Code Section 27-302, referring to search warrants, states that "if the goods are found, the officer shall seize and bring thE:m before the court, who may hear evidence as to ownership and possession and grant possession to the owner from whom the same have been feloniously taken."
In the case of Hancock v. Anchors, 26 Ga. App. 125, a suit in trover was brought against a bailee by the bailor of an automobile, since the bailee had delivered the automobile to a third party claiming ownership. The court held as follows: "While it is the gE:neral rule that a bailee is not permitted to set up an adverse title in another as an excuse for his failure to deliver the property to his bailor on demand, still the owner of stolen property may follow and retake it, in whomsoever's hands it may be found."
It is generally the practice where stolen property comes into possession of the court in aid of a criminal prosecution, to restore it to its rightful owner when it is no longE:r needed, if there is no dispute as to its ownership. When, however, there is a controversy between the person from whom possession of the property was taken by search warrant and the person from whom it is claimed the property was stolen, as to which has the right to it, the question is presented which cannot be determined on a criminal process, but must be determined by a civil suit.
A warrant of arrest may sometimes answer the purpose of the search warrant, so that if the officer, while making an arrest, discovers property which is the subject of search and seizure, he may seize it by virtue of the warrant of arrest. There appears to be no constitutional prohibition regarding

603
a seizure without a search warrant where there is no need of a search and where the contraband subject matter is fully disclosed and open to the eye and hand.
While it is not the policy of the Attorney General to attempt to outline ~he ad~inistrative procedure of other State Departments, it would appear that m the mstant case to which you refer that the best procedure would have been to have had either a warrant or a search warrant. However, the purchaser of the stolen automobile, even though he may have been a bona fide purchaser for value and without notice, received no better title than the seller possessed. Therefore, since the seller had stolen the automobile, obviously, the Carl Gorman Motors received no title. Their course of action will have to be against the thief. As stated the better practice will be to turn impounded contraband property over to the proper court for disposition and E:ventual return by it to the rightful owner rather than for the officers of the Department of Public Safety to undertake to settle the title to the property itself.
It has been assumed throughout the writing of this opinion that the automobile to which you referred was in fact stolen property.
PUBLIC SAFETY-Department of Public Safety The Department of Public Safety may not be sued for damages resulting from the killing of livestock by the negligent operation of a state patrol car.
July 14, 1947
Hon. J. Q. Davis, Director Department of Public Safety
Reference is made to your letter of July 8th, together with its enclosure, a letter addressed to yourself from Mr. Dan I. Gnann, Box 24, Lakeland, Georgia. It is assumed that the question upon which an opinion is requested is, "Is the Department of Public Safety responsible for the payment of damages for livestock killed upon the highways of the State by patrol cars?"
The question must be answered in the negative as the rule is well settled that neither the State, nor any of its departments, unless it has assumed such liability by Constitutional mandate or legislative enactment, is liable for injuries arising from the negligent or other tortious acts or conduct of any of its officers, agents, or servants, committed in the performance of their duties. In other words the doctrine which is general in law to the effect that a principal is liable for the negligent acts or other tortious conduct of his agents, when acting within the scope of their authority, does not apply to sovE:reign states, unless through their legislative departments they assume such liability
voluntarily. It should be noted here, however, that the rule above stated does not leave
individuals or other legal entities who have been injured or damaged remediless as, ordinarily, the officer or employee committing the tort is personally liable therefor, and may be sued as any other citizen and held answerable for whatever injury or damage results from his tortious act. Thus, if the driver of a patrol car. operated by the Department of Public Safety be negligent and through an act involving that negligence destroys property or life, an action would lie against such driver personally; but in such a situation the State itself

604
could not be sued unless such a right was specifically granted by the State Constitution or by a statute of the General Assembly.
In adopting th(; Constitution of Georgia, the people did not see fit to make the State liable for the tortious acts of its agents or employees. Neither is there to be found in the statute creating the Department of Public Safety authority or permission for such a suit to be brought against the State agency.
In view of the above it is my opinion that the Department of Public Safety is not liable to pay the damage resulting from the killing of live stock upon the highways of the State by patrol cars operated by that agency of government. Further, it is my opinion that this is true whether or not the driver of such a patrol car be negligent and, therefore, responsible for the damage.
PUBLIC SAFETY-Department of Public Safety Members of the Georgia State Patrol may execute warrants for arrest, directed to them, and based upon those offenses for which they have statutory authority to make arrests, or when requested to do so by competent local law enforcement authorities.
September 29, 1947 Hon. J. Q. Davis, Director Department of Public SafeW
I have your letter of September 22, in which you request my opinion on the following question:
"Have members of the Georgia State Patrol ,the authority to serve warrants which have been taken out by private citizens and delivered directly to the Georgia State Patrol to be served?"
A warrant may be defined as "A writing from a competent authority in pursuance of law directing the doing of an act, and addressed to an officer or person competent to do the act, and affording him protection from damage if he does it." (67 C. J. 603, Sec. 3).
I take it that the warrants to which you refer are those ordering arrests. In such cases, the warrant orders the officer to whom it is directed to make an arrest. A warrant directed to an officer otherwise incompetent to make an arrest is not in itself sufficient authority to authorize the officer to make the arrest. See Coleman v. The State, 121 Ga. 595 and Coker T. The. State, 14 Ga. App. 609.
Therefore, the authority of the members of the Georgia State patrol to execute warrants can be no greater than their authority to make arrests. That authority stated in Code sections 92A-242 and 95-1809, and may be summarized, as follows:
The Georgia State patrol may make arrests for the following offenses: 1. Violations of traffic laws; 2. Violations of laws regulating the use, ownership and control of motor vehicles; 3. Offenses committed upon the highways of the State;. 4. Violations of the railroad laws; 5. Arrest of fugitives or persons likely to become fugitives, where the assistance of the officers of a municipality cannot readily be obtained. As to the above offenses, it is my opinion that the members of the Georgia

605
StatE: patrol are competent to execute warrants for the arrest of the offenders. The warrants must be directed to the Georgia State patrol, however, and this will generally entail a change in the form of the warrant, since they are usually addressed to sheriffs, deputy sheriffs, etc. I consider it doubtful that the members of the Georgia State patrol can execute warrants directed to sheriffs, dE:puty sheriffs, etc., as the usual warrants are addressed; the Georgia State patrol should be specifically designated among the classes of officers to whom the warrant is directed. The fact that a warrant propHly issued and directed has been sworn to by a private citizen rather than an officer, and has been delivered by such citizen, will not change the legal effect of the warrant.
As to all offenses other than those outlined above, the members of the Georgia State patrol are on the same plane as private citizens and have no right to execute warrants. However, there are exceptions to this rule.
Code section 92A-242 states: "... upon request of the governing authorities of the municipality, or of the sheriff of any county or of the judge of the superior court of any county of this State, the Georgia State patrol shall be authorized to render such assistance as such authorities may request in any other criminal case." "The authority to render such assistance as such authorities may request" unquestionably will include the execution of criminal warrants. There:fore, if competent municipal authorities or the sheriff of any county or a judge of the superior court request members of the Georgia State patrol to execute a warrant, or if by the terms of a warrant they order such members to execute it, the patrolmen are perfectly competent to execute such warrants. Again, the fact that a private citizen has sworn to and delivered the warrant will not vary the legal effect of this section. It is emphasized, however, that such warrants must be directed to the Georgia State patrol or the competent authorities mentioned' in the section must request that the patrolman execute them; a request by a private citizen will not suffice. My conclusions, therefore, are that members of the Georgia State patrol are competent to execute warrants directed to them, based on those offenses wherein thE:y have the right to make arrests. As to all other offenses, they have no right to execute warrants unless requested to do so by competent authorities set out in the sections quoted. Naming the Georgia State patrol as one of the directees in the warrant is a sufficient request.
PUBLIC SAFETY-Drivers Licenses (1) The Director of Public Safety, with the approval of the Department of Public Safety, may formulate rules and regulations regarding the liability insurance requirE:d for the reinstatement of a driver's license suspended or cancelled under the Motor Vehicle Safety Responsibility Act of 1945. (2) The Director of Public Safety may not require an insurance company to give the Director 10 days notice before the cancellation of a liability insurance policy required for the re-instatement of a driver's license under the Motor Vehicle Safety Responsibility Act of 1945. November 6, 1945
Hon. C. A. Williams, Director Department of Public Safety
I am pleased to acknowledge your letter of November 2nd, together with a copy of certain rulE:s proposed to be promulgated in reference to the Act

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approved March 8, 1945, entitled "Motor Vehicle Safety Responsibility Act." You request my opinion as to whether the rules proposed to be issued are in conformity with the statutory provisions of this State.
Section 92A-421 of the Amended Code provides as follows: "The Director of the Department of Public Safety shall, subject to the approval of the DepartmE:nt, formulate rules and regulations for the issuance, cancellation, suspension and revocation of licenses as provided by this Chapter, of which full notice shall be given to the public within 30 days after the same are promulgated, in some public gazette in each congressional district having a general circulation in the State in not less than two issues, and with such additional publicity as the Director may prescribE:. The publication of such notice shall be proof that notice has been given under this Chapter. A copy of rules and regulations shall be furnished each person when a license is issued."
The above provision of law gives the Director, subject to the approval of the Department of Public Safety, broad authority to promulgate rules and regulations relating to the issuance, cancellation, suspension and revocation of licenses as provided for in this law. The Motor Vehicle Safety Responsibility Act approved March 8, 1945 while placing certain responsibilities on the DirE:ctor of Public Safety in reference to the suspension and revocation of drivers' license, does not provide for rules and regulations to be promulgated to specifically carry out the terms of this Act. I am of the opinion however, that a reasonable construction of the Motor Vehicle Safety Responsibility Act, together with the general powers contained in Section 92A-421 above referred to, gives ample authority to the Director of the Department of Public Safety, subject to the approval of the Department, to formulate rules and regulations dealing with the issuance, cancellation, suspension and revocation of licenses rE:ferred to in both statutes. The first four rules proposed by you read as follows:
" (1) The policy of liability insurance required by Section 4, paragraph (a) of said Act No. 332 as a condition precedent to the re-instat~ment of a drivers' license suspended or cancelled under the terms of said Act, is a Motor Vehicle Liability Policy issuE:d to or for the benefit of the person named therein as the insured.
" (2) The policy secured shall insure the person named therein against loss from the liability imposed by law for damages arising out of the use by him of any motor vehicle within the State of Georgia, subject to the limits prescribed in Section 4, paragraph (a) of said Act No. 332, exclusive of interest and costs.
" (3) The policy secured shall insure solely the insured named in the policy, and shall not insure theinsured against liability resulting from the maintenance or use of motor vehicles by members of the insured's family, persons in the insured's employ or on his behalf.
" (4) Proof that the policy of liability insurance required by Section 4, paragraph (a) of said Act No. 332 has been secured as a condition precedent to the re-instatement of a drivers' license suspended or cancelled under the terms of said Act, shall be furnished by filing with the Director of Public Safety of Georgia, the written certificate of any insurance carrier duly authorized to do business in the State of Georgia, certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to secure same."
I am of the opinion that the foregoing proposed rules come within Section

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92A-431 supra, and can be: effectively promulgated provided the Department approves same.
Section 5, the last proposal reads as follows: ' "When an insurance carrier has certified a motor vehicle liability policy under Section 4, paragraph (a) of said Act No. 332, the insurance so certified shall not be cancelled or terminated until at least 10 days after a notice of cancellation or termination of the insurance so certified shall be filed in the office of said Director, except that such a policy subsequently secured and certified shall, on the effective date of its certification, terminate the insurance previously certified." It is my opinion that the Director of Public Safety has not been given jurisdiction over insurance carriers to the extent that said carriers could be required to give notice of the termination or cancellation of a certificate of insurance. Usually the terms of cancellation are specifically stated in the contract of insurance, and this would preclude any othE:r condition relating to cancellation to be subsequently added by the Department of Public Safety unless there was a specific statute granting such authority. Since there is no statute giving such authority, it is my opinion that Section 5 of the proposed rule goes beyond the authority contained in Section 92A-431, supra. I note in Section 4 of the Motor Vehicle Safety Responsibility Act the following provision: "All insurance companies issuing policies under this Act shall be subject to the jurisdiction of the Insurance: Commissioner and the Attorney General." Should you deem it necessary, it seems that the Insurance Commissioner and the Attorney General might be in a position to render assistance to the Department of Public Safety by requesting the insurance carriers in this State: to agree to give at least ten days' notice before a policy of liability insurance is cancelled. I feel certain that the insurance companies writing this type of business will be glad to cooperate with us, and no doubt a letter from you to them with such a requE:st will achieve the desired results.
PUBLIC SAFETY-Drivers Licenses The Director of Public Safety may authorize an agent of the Department of Public Safety to hold hearings on the refusal, suspension, revocation or cancellation of a drivers license.
April 8, 1946
Hon. William E. Spence, Director Department of Public Safety,
This will acknowledge your lE:tter dated April 1, in which you request an opinion as to whether or not the Director of the Department of Public Safety can delegate the authority to hold hearings on the suspension, and reinstatement of drivers' licenses.
Section 2, Article IV of the Act, as amended, creating the DepartmE:nt of Public Safety (Ga. L. 1937, pp. 322, 342) provides that the Director of the Department of Public Safety shall formulate and prescribe the rules and regulations under which licenses for learners, operators and public rhauffeurs shall be granted, suspended, revoked and cancelled.
As you do not furnish me any regulations of thE: department with respect to the granting of a hearing on the suspension, revoking or cancelling of a

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license, I must assume that you have reference to Section 2, Article IV of the Act, as amended, which requires that upon the refusal, suspension, revocation or cancellation of any learner's, operator's or chauffeur's license, for cause, a hearing shall be granted on demand in the county of such person's residence. That Section provides in part:
"Upon the refusal, suspension, revocation or cancellation of any learner's, operator's, or chauffeur's license for cause, a hearing shall be granted on demand before any Agent of the Department of Public Safety authorized by the Director to hear the same, which hearing shall be had in the county of such person's residence, and need not be a matter of record. The decision of such Agent or Officer of the Department of Public Safety shaH be final, unless the person whose license has bE:en suspended, revoked, or cancelled shall desire an appeal, in which case he shall have the right to enter an appeal to the court of the county of his residence, other than a Justice's court, having jurisdiction over misdemeanor cases, after notice to the Director in the same manner as appeals are entered in the Court of Ordinary, excE:pt that he shall not be required to pay the costs in advance...."
You will observe that the Act specifically authorizes the hearing to be before any Agent of the Department, authorized by the Director to hear the same and further provides that the decision of such Agent or Officer of the Department shall be final, unless an appeal is taken. I find no subsequent legislation of the General Assembly which repeals, either specifically or by implication, the provisions hereinbefore quoted.
PUBLIC SAFETY-Drivers Licenses A truck driver hauling raw products from a quarry to a processing plant for his employer and crossing or using a public highway must have a chauffE:ur's license.
September 19, 1946 Hon. William E. Spence, Director Department of Public Safety
This will acknowledge your letter of September 17, in which you ask my opinion "as to whether or not a truck driver is required to have a chauffeur's license when operating a vehicle for a private corporation when engaged in hauling raw products for the employer between quarry and procE:ssing plant if his route carries him across a public highway".
It would depend entirely upon the facts and circumstances of the employment whether or not the driver of a truck would be required to have a chauffeur's license. I would think that a truck driver hauling raw products for the employer between quarry and processing plant would be such a driver as would be "employed by another for the principle purpose of driving a motor vehicle" so as to come under the classification of public chauffeurs as set out in Section 92A-401, sub-section 3 (a) of the Code of Georgia of 1933, annotated pocket part. The only exemption as relates to other than non-residents and persons operating a motor vehicle in the service is under sub-section 2 of Section 92A402 of the Code which is as follows:
"Any person driving or operating a farm tractor or implement, temporarily operated or moved on the highway and not usE:d for the purpose of hauling farm products to market".

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The Act of 1939, page 135, substituted "farm tractor or implement" for ''motor vehicle" in the Act of 1937, page 322. It is, therefore, my opinion that a truck operated in the manner set out in your letter could not be classified as a farm tractor or implement so as to come under the exemption and that if the truck driver is employed for the principle purpose of driving the truck, he would be required to be licensed as a chauffeur to legally operate the truck.
PUBLIC SAF~TY-Drivers Licenses A person holding an out-of-state drivers license may not drive on the public highways of this State without a Georgia drivers license after becoming a resident of Georgia.
October 31, 1946 Hon. William E. Spence, Director Department of Public Safety
This will acknowledge your letter of October 29, in which you make the following request:
"Will you please give us an opinion as to how long a period of time a person holding a valid out-of-state license has to obtain a Georgia license after becoming a resident of the State of Georgia."
Section 92A-401 of the Georgia Code provides as follows: "92A-401. License classification.-The Director of the Department of Public Safety shall formulate and prescribe the rules and regulations under which licenses for learners, operators and public chauffeurs shall be granted, suspended, revoked and canceled, and such persons shall be divided into three classes as follows: "(1) The learners class shall embrace all persons not otherwise disqualified over 16 years of age, not possessing an operator's or public chauffeur's license. "(2) The operators class shall embrace all persons not otherwise disqualified above the age of 16, except public chauffeurs, who may be entitled to an operator's license. "(3) Public chauffeurs class which shall embrace all persons not less than 18 years of age and not otherwise disqualified. "(a) Who is employed by another for the principal purpose of driving a motor vehicle. "(b) Every person who drives a school bus transporting school children. "(c) Every person who drives any motor vehicle when in use for the transportation of persons or property for compensation." It appears from this Section of the Code that the Director of the Department of Public Safety must set up rules and regulations governing issuances of licenses to those residents of Georgia coming within the definitions quoted. Section 92A-402 provides as follows: "92A-402. Who may operate motor vehicles without license.-The following persons are exempt from the provisions of this Chapter: " (1) Any person operating a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States. "(2) Any person driving or operating a farm tractor or implement, temporarily operated or moved on the highway and not used for the purpose of hauling farm products to market.

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"(3) A nonresident of the State at least 16 years of age and who is the

holder and possessor of a valid operator's or public chauffeur's license issued

by the State of his domicile.

" (4) A nonresident who is at least 18 years of age whose home State or

Country does not require a license for operators of a motor vehicle, may operate

a motor V6hicle in passing through this State."

In sub-paragraphs (3) and (4) of this Section, you will note that the con-

ditions under which a nonresident of this State may operate a motor vehicle

are outlined. There is no provision for exemption made for a resident of this

State except the person be in the service of the Unit6d States Army, Navy, or

Marine Corps, or except he be operating a farm tractor or implement, tempo-

rarily moved onto the highway and not used for the purpose of hauling farm

products to market.

"Section 68-221 of the Georgia Cod6 deals with the issuance of licenses

for motor vehicles for nonresidents of this State and although this Section may

not be applicable as a whole to your question, it is nevertheless quoted and

included in this opinion:





"68-221. Nonresidents; licenses required, when.-Motor vehicles owned by

nonresidents of the State may be used and operated on the public streets and

highways for a period of 30 days without having to regist6r and obtain a li-

cense to do so or a chauffeur's license: Provided, that the owner or own6rs

thereof shall have fully complied with the laws requiring the registration of

motor vehicles in the State or Territory of their residence. and that the regis-

tration number and initial letter of such State or Territory shall be display6d

and plainly visible on such vehicle or vehicles. In other respects, however,

motor vehicles owned by nonresidents and in use temporarily within the State

shall be subject to the provisions of this law: Provided, no resident shall be

allowed to operate a motor V6hicle within this State under a license issued by

another State."

You will note that the provision in the last part of this Section definitely

prohibits the operation of a motor vehicle within this State by a resident of this

State under a license issued by another State.

In view of the provisions of the Sections 92A-401 and 92A-402 quoted in

this opinion, and further in view of the provision in Section 68-221, the logical

inference is that immediately upon becoming a resident of this State that

person must come under the laws and consequently under the rules and regu-

lations set up to carry out these laws.

Therefore, it is my opinion that a person after becoming a r6sident of

Georgia may not legally operate a motor vehicle in Georgia without first ob-

taining a license under the rules and regulations formulated and prescribed

by the Director of the Department of Public Safety.

PUBLIC SAFETY-Drivers Licenses The Director of Public Safety may not cancel or suspend a drivers license b6cause of an unsatisfied judgment rendered against the driver in another state.
January 10, 1947 Hon. William E. Spence, Director Department of Public Safety
Receipt is acknowledged of your request for my opinion as to your

611
authority under the Motor Vthicle Safety Responsibility Act in connection with your power of suspending a driver's license for an unsatisfied judgment rendered against the driver in another State.
The authority dtlegated to the Director of Public Safety in connection with the failure of a person to satisfy a damage judgment is contained in Section 92A-602, which reads as follows:
"The Director of Public Safety is hereby authorized to cancel or suspend the driver's license of any person who fails to pay a final judgment rendered by a court of competent jurisdiction of this State within 30 days after the judgment has become final where such judgment is bastd upon any cause of action arising out of the operation of a motor vehicle upon the highways or streets of this State".
You will note that the above quoted section specifically requires that the judgment be rendered by a court of competent jurisdiction of this State and that the cause of action must arise out of the operation of a motor vehicle upon the highways or strtets of this State. Because of the use of the words "of this State" by the Legislature in this Act, I am of the opinion that this law does not intend to grant any authority to the Director of Public Safety which would extend beyond the jurisdiction of the State. I can find no law which will authorize a construction that the power given in the above law can be extended to judgments of other States.
It is, therefore, my opinion that the power of the Director of Public Safety to suspend a driver's license on an unsatisfied Judgmtnt operates only where the judgment is rendered by a court of competent jurisdiction of this State and is based upon a cause of action arising out of the operation of a motor vehicle upon the highways or streets of this State.
PUBLIC SAFETY-Drivers Licenses (1) The refusal, suspension, revocation or cancellation of a drivers license is suspended by a demand for hearing bdore an authorized agent of the Department of Public Safety, but not by an appeal after hearing. (2) Validity of statute providing that no drivers license shall be issued to a person whose license has been three times revoked for cause questioned but not decided.
July 23, 1947 Hon. J. Q. Davis, Dirtctor Department of Public Safety
This will acknowledge your letter of July 14 in answer to our letter of July 10 requesting more specific information as to what opinion you desired relative to the kind of hearing your department is authorized to grant with reference to the suspension, revocation, or cancellation of a driver's license.
In Code Section 92A-427 it is stated that an operator's or chauffeur's license shall be subject to rtnewal after being suspended, revoked, or cancelled on such terms as the Director shall prescribe.
Code Section 92A-422 is as follows: "Upon the refusal, suspension, revocation, or cancellation of any learner's, operator's or chauffeur's license for cause, a hearing shall be granted on demand before any agent of the Department of Public Safety authorized by the Director to hear the same . ."

612
Construing the above sections together, it is manifest, firstly, that a refusal, suspension, revocation, or cancellation of any learner's, operator's or chauffeur's license is final only if no hearing is demanded. In other words, for example, an operator's license, which is declared revoked by thE: Director shall be revoked on such terms as he may set out as authorized by the statute, but if a demand for a hearing is made, the said order of revocation is automatically lifted and made void, until and unless a new order of revocation is issued by the hearing officE:r at the final determination of the hearing or unless it is declared void upon a subsequent appeal to court. However, during this period the operator shall not be allowed to operate any motor vehicle, as declared in Code Section 92A-426. Likewise, an order of suspension, refusal, or cancellation is automatically lifted subject to a ruling by the hearing officE:r to sustain or overrule the order.
Secondly, it is clearly the intention of the statute that if a demand for a hearing is made upon the refusal, suspension, revocation, or cancellation of a license, in issuing the new order at the final determination of the hearing to either suspend, overrule, or modify the original ordE:r, the hearing officer would be empowered to allow the licensee to drive for business purposes only, unless the hearing officer ordered a revocation. He would not be limited to either sustaining or overruling the original order, but could also modify the same, for the original ordE:r, as previously stated, is made void by the appeal and the hearing becomes a de novo determination. To reiterate, the original order of refusal, suspension, revocation, or cancellation is automatically voided upon a demand for a hearing, subject, however, to being sustained, overruled, or modified by the hearing officer, and in modifying the original order, he may allow the licensee to drive his motor vehicle for business purposes only.
With reference to Code Section 92A-403 which states that no license shall be issued at any time to a person whose learner's, opE:rator's or chauffeur's license has been three times revoked for cause, it is felt that said section is subject to careful scrutiny, and while not passing on the point in this opinion, there is considerable doubt if the Section is constitutional.
While it is competent for the legislature to prescribe conditions under which the privilege of operating a motor vehicle may bE: exercised, yet a license may not be revoked arbitrarily. It i3 the general rule in most states that a license to operate a motor vehicle is not property but rather it is a privilege.
But in the case of Thompson v. Smith, 154 S. E. 579, the Supreme Court of Virginia stated that the right of a citizE:n to travel upon the public highways and to transport his property thereon is not a mere privilege which a city may permit or prohibit at will, but a common right which he has under his right to life, liberty, and the pursuit of happiness. However, in Georgia, by Code Section 92A-434 the legislature has prescribed the grounds for revocation and thus the problems discussed in the Thompson case, supra, are not altogether in point.
The question is whether the legislature can set up a "three revocations" standard as bE:ing sufficient cause for permanent!~' refusing a citizen a right to drive upon the highways of this State. The legislature under its police powers has broad power to prescribe rules for the safety of the general public upon the highways. But presuming, for example, that the entire source of wrong, which originally caused the third revocation of a license, was no longer continuing, would not the permanent revocation be depriving a citizen of his

613
constitutional rights, would it not be an arbitrary E:Xercise of power that had no effect upon public safety? It is felt that obviously the answer must be in the affirmative, while, as previously observed, the point is not being passed on in this opinion.
PUBLIC SAFETY-Drivers Licenses The judge of a court in which a licensee is convicted for an offense authorizing the Director of Public Safety to revoke or suspend his drivers license, may not prohibit the Director from exercising such authority.
October 24, 1947 Hon. J. Q. Davis, Director Department of Public Safety
I have your letter of October 17, in which you request my opinion relativE:' to the following question:
"Does the Judge of any court have the authority to prohibit the Department of Public Safety from suspending, revoking, or cancelling the driver's license of any pE:rson that is convicted, in that respective court, where the court does not suspend, revoke, or cancel the license, nor place thE: licensee under probation?"
Code Section 92A-9908 provides as follows: "Upon the conviction of any licensee hereunder in any court of competent jurisdiction in this State of any offense, of driving a motor vehicle while intoxicated, or driving a motor vehicle in a felony, or deliberately, wilfully or negligeRtly violating any traffic law of this State, or any municipality thereof, the court trying the same is hereby given authority and jurisdiction upon such licE:nsee being adjudged guilty to cancel or suspend the license of such defendant for such time and on such conditions as the court may deem proper, and in the event that the court should place such licensee under probation, it is hereby provided, that the court shall retain jurisdiction of said case during the period of probation with the right and power to suspend or revoke the license as to the court may deem in keeping with the public safety. . . ." Code SE:ction 92A-434 provides as follows: "The Director may in his discretion revoke the license of any operator or chauffeur upon receiving the record of such operator's or chauffeur's conviction of any of the following offenses: " ( 1) Manslaughter (or negligent homicide) resulting from the operation of a motor vehicle; (2) driving a motor vehicle while under the influence of intoxicants or drugs; (3) any felony in the commission of which a motor vehicle is used; (4) failure to stop and render aid as required under the laws of this State in the event of a motor vehicle accident resulting in the death or personal injury of another, or leaving the scene of an accident as specified by the law of this State; (5) perjury or the making of a false affidavit or statement under oath to the Department under this Chapter or under any other law relating to the ownership or operation of motor vehicles; (6) conviction, or forfeiture of bail, not vacated, upon three charges of violation of the motor vehicle laws of this State within a period of 12 months: Provided, that this shall not include violations which do not affect the safety of human life or limb on the streets or highways of this State." Code Section 92A-422 in part provides as follows:

614
"... The words 'suspension', 'revocation', and 'cancellation' are defined for the purpose of this Chapter, as follows:
"(a) Suspension means that the licensee's privilege to drive a motor vehicle is temporarily withdrawn, (b) Revocation means that the licensee's privilege to drive a motor vehicle is terminated. A new license may be obtained only as permitted in this ChaptH. (c) Cancellation means that the license which was issued through error or fraud is declared void and terminated. A new license may be obtained only as provided in this Chapter."
It would appear that the use of the words, "suspension", "revocation", and "cancellation" have sometimes been employed carelessly and interchangeably in the past. These words, howE:ver, are technical words and are specifically defined by statute, supra.
There is no doubt that the Director of Public Safety has the right to revoke the license of any operator who is convicted of any of the offenses listed in Code Section 92A-434, supra, and this would be true regardless of the sentence of the court wherein he was convicted.
Code St.ction 92A-421 states that the Director of Public Safety shall formulate rules and regulations for the issuance, cancellation, suspension, and revocation of licenses.
Since cancellation refers to a license which is issued through fraud or error, the question of the authority to cancel a license upon conviction of one of the enumerated criminal offenses is not involved in thE: inquiry under discussion.
With reference to the authority to suspend a license, at first glance it might appear that the Director is limited to being authorized to revoke only; however, since; a suspension is of less severity than a revocation, it is obvious that if the Director has the authority to revoke, he also has authority to impose a penalty of a lesser degree, that is, the authority to suspend. And this conclusion would be doubly true, if, under Code Section 92A-421, regulations have been promulgated outlining" such a procedure and giving and granting the Director such authority.
Now, since such a revocation would be in excess of the time stated in the sentence of the court, that is, in excess of a mere suspension, such excess period would be subject to review upon a hearing, if the license-holder demanded such, as outlined in Code Section 92A-422. Obviously, such hearings can be had only when the Director revokes a license, for if the court suspends a licE:nse, the license-holder's remedy is in a motion for a new trial or other appropriate legal proceeding in that court.
Therefore, it is my opinion that, under the facts presented by your inquiry, the Director would have the authority to suspend or revoke such a license and the judge of the court wherein the licenseE: was convicted could not prohibit the Director from so doing in his sentence.

615
ROADS, BRIDGES AND FERRIES-Counties (Unofficial) A county may not bid on contracts let by the State Highway Department when the county is contemplating using hired labor.
November 24, 1945 Hon. Ralph A. McLendon, Chairman Board of Commissioners, Roads and RE:venues Wilkes County Washington, Georgia
Your letter of November 9, requesting an opinion as to whether a county may bid on road contracts let by the State Highway Department, with the county contemplating using hired labor, acknowledged.
Code Section 95-1718 of the Code of 1933 provides that any one or more counties may contract with the Highway Board to use the quota of convicts to which such counties may be entitled in the construction of any portion of StatE:-aid roads, etc. Under the above section the State Highway Department of Georgia has the authority to contract with counties to construct State~aid roads when the counties are using their quota of convicts in said construction.
Code Section 95-2217 'Of the pocket supplement to the Code of 1933 provides that the State Highway Board is empowered to contract with the counties for the construction of rural post roads and bridges upon such terms as they are empowered to contract for the construction of any roads on the State highway system.
Code Section 95-2220 of the pocket supplement to the Code of 1933 providE:s that the county authorities of the several counties of this State having jurisdiction of the roads and bridges of such counties, are empowered to contract with the State Highway Board for construction of any United States rural post roads and bridges and/or any farm-to-market roads or bridges thereon in their respective counties, and are empowered to use such funds in the county treasury for this purpose as are available for road purposes, including the one cent gasoline tax now allowed to thE: counties for road purposes.
Code Section 95-2207 of the pocket supplement to the Code of 1933 gives the definition of rural post roads and farm-to-market roads, and roads as follows:
"The term 'rural post roads' shall mean all roads and highways in the several counties of the State of Georgia ovH which U. S. mail is carried, not included in the present highway system. The term 'farm-to-market roads' in this Chapter shall mean all public roads and highways in the several counties of the State of Georgia, other than U. S. post roads and/ or State-aid roads. (Acts 1937, p. 912, 914.)"
Code Section 95-1715 of the pocket supplement to thE: Code of 1933 provides that the State Highway Board shall have authority to plan and to construct, improve and maintain State-aid roads in any manner it may deem expedient, by free labor, contract, or by any other method or combination of methods, in its discretion.
Code Section 95-1606 of the pocket supplement to the Code of 1933 transferred the powers and duties of thE: management and control of the State Highway Department to the State Highway Director, except when such duties and powers may conflict with those of the State Highway Commission.
Under Code Sections 95-1606, 95-2217, 95-2220, and 95-2207 of the pocket supplement to the Code of 1933, the State Highway Department of Georgia

616
has the right to contract with the various counties of this State for the construction of rural post roads and farm-to-marke;t roads in their respective counties.
Code Section 23-1705 of the Code of 1933 reads as follows: "No contract with this State, a county, municipal corporation, or any other public board or body thereof, for the doing of any public work shall be valid for any purpose, mi.less the contractor shall give bond, payable to the State or other body contracted with, with good and sufficient surety, for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery, or materials under or for the purpose of such contract, conditioned for the completion of the contract in accordance with its ttrms, for saving the obligee free from all costs and charges that may accrue on account of the doing of the work specified for the payments as they become due of all just claims for work, tools, machinery, skill and materials furnished by persons under, or for the purpose of, such contract, and for a compliance with the laws appertaining the;reto. The penalty of such bond shall be not less than the contract price." Under the above quoted Section and the statutes herein quoted, the State Highway Department of Georgia would be prohibited from entering into a contract with a county of this State let upon a competitive bid unless the county should give a surety bond. The statutes of this State prohibit counties from giving surety bonds and the Constitution of this State does not allow the counties to levy a tax to cove;r a loss in the event the county should sustain a loss under the contract. For this reason, I am of the very definite opinion that a county does not have the right to bid on contracts let by the State Highway Department of Georgia when the county is contemplating using hired labor.
ROADS, BRIDGES AND FERRIES-Grade Crossings (1) A railroad may be required to contribute 50% of the cost of eliminating a grade crossing where the provisions of Code Chap. 95-19 are followed. (2) A railroad and the State Highway Department may agree for joint participation in the cost of elimination of a grade crossing on a basis of less than 50% to the railroad. (3) The amount a railroad is required to pay in any one year for grade crossing elimination is limited by statute.
October 8, 1947 Hon. C. N. Crocker Bridge Engineer State Highway Department
In your request of September 30 you requested that I give you my opinion construing Chapter 95-19 of the Code of 1933 and answer four questions propounde;d therein.
The Chapter of the Code to which you refer constitutes the Act of 1927, (Ga. L. 1927, p. 306), and deals with grade crossing elimination. The Act is known as the grade crossing elimination law, and it gives certain powers to the State Highway Department and to the Commissioners of Roads and Revenues of the different counties of the State.

617
Section 95-1902 gives to the State Highway Department and the Commissioners of Roads and RE:venues the power, when they deem it practicable and in the interest of public safety, and reasonably necessary therefor, to authorize and direct the elimination of grade crossings on State and county roads. The county board of Commissioners can not enforce the provisions of the Act ~ntil the State Highway Department shall approve of the order of the county providing for the elimination of a grade crossing.
Section 95-1903 provides for cE:rtain notice to railroads and for the procedure to put into effect the orders granted by the State Highway Department for State roads and the Commissioners for county roads. In one of your questions, you request that I advise whether or not the Highway Department can force the railroads to contribute fifty per eent of the cost of railway-highway grade eliminations generally. Section 95-1905 of the Code deals with the question propounded.
It is providE:d in substance in this section that the total cost of surveys and of the preparation of plans and specifications and the estimates of cost shall be paid one-half by the Department, or county board, and one-half by the railroad or the railroads involved.
It is provided, however, in this section that the total cost of grade crossing elimination by an overpass or underpass, including the establishment of drainage, shall be paid one-half by the Department or board, and onE:-half by the railroad or railroads involved; provided that the construction expenses in which the railroad or railroads may be required to participate shall be confined to the grade-separation structure and approaches not exceeding 300 feet on each side of the center line of thE: railroad track or tracks measured along the center of the highway. The approaches shall not be regarded as extending further than from grade point to grade point and the railroads shall not be charged with any cost of paving except on the flooring of an overpass. The Department or county board, under said section, is not permitted to interfE:re with or change the grade or alignment of the railroad tracks without the consent of the railroad. In the next section 95-1906, the Act provided that the work may be divided and apportioned partly to the Highway Department, or county, and partly to the railroad or railroads themselves.
I am of the opinion that your first question should be answered in the affirmative; that is, that railroads can be forced to contribute fifty per cent of the cost of grade eliminations where the terms of Chapter 95-19 are followed by the Department.
In the next question you request that I advise whether or not the Department can force a railroad company, or companies, to pay ten per cent rather than fifty per cent if the State Highway Department believes ten per cent to be the extent of the railroad's liability.
Section 95-1912 of the Code provides as follows: "Nothing in this Chapter shall be construed to prevent such DepartmE:nt or county board from reaching special agreements with railroad companies providing for grade-crossing elimination by means of relocation of either the railroad or highway involved, or by other means, and arranging for joint participation in the cost of such elimination on an agreed basis."
1'his section provides that the provisions of the Act of 1927 shall not prevent the Department or county from reaching special agreements with railroad companies for elimination of grade crossing by means of relocation of

618
the railroad or highway or by other means, and arranging for participating in the cost on an agreed basis.
Construing this section in connection with the Act, it is my opinion that the State Highway Department could compel the railroad to participate in the cost of the construction on a fifty per cent basis as provided in Section 95-1905, but could not force them to participate on a smaller basis other than by special arrangements as agreed on by the State Highway Department and the railroad. It is my opinion, that notwithstanding the provisions of the Act which require the railroads to participate by paying fifty per cmt that the Department and railroads would have the right to enter into an agreement or special arrangement whereby the railroad is to pay ten per cent rather than the fifty per cent as provided for in the Act. I do not find any Georgia statute which would prevent the Highway DepartmE:nt from agreeing with the railroad to contribute less than fifty per cent or in fact any other amount or percentage. I think that Section 95-1912 provides for such special arrangements.
The other two questions deal with the amount that a railroad may be required to pay in any one year. This question is dealt with in Section 95-1916 of the Code of 1933. Under the section no railroad shall be required to spend in any calendar year, undE:r any provision of the Chapter, a sum in excess of $40,000. The meaning of that provision of the law, according to my opinion, is that the counties of the State and the Highway Department combined can not compel any railroad to spend on grade elimination more than $40,000 per year.
The section provides that no railroad whose gross earnings from interstate and intrastate business, as reported to the Public Service Commission did not exceed $2,000,000 shall be required without its consent to spend in any one calE:ndar year under the provisions of the Act a sum in excess of $3,000. My construction of this language is that the State Highway Department and the counties of the State can not require any railroad company to spend more than $3,000 in any one calendar year for grade elimination under the provisions of the 1927 Act where such railroad income as reported to the Public Service Commission is $2,000,000 or less.
This section of the Code provides, howE:ver, that in cases where the proportionate part required of a railroad under the provisions of the Act amounts to more than the sum for which the railroad is liable in a calendar year, the Department, or the counties, would have the right to pay the excess and thereafter collect the same with legal interest from the railroads during the succeeding calendar year or years. It seems, therefore, that while the State Highway Department, or the counties, could not force a railroad with an income of $2,000,000 or less to pay more than $3,000 in one year if the amount due by the railroad was greater, the DE:partment would be entitled under the Act to recover from the railroad, the difference between the two amounts in the future year or years.

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ROADS, BRIDGES AND FERRIES-State Highway Department Official matters for the State Highway Department should be signed by the Director.
October 16, 1945 Ron. G. T. McDonald, Director State Highway Department
I am pleased to acknowlE:dge yours of October 16, requesting my opinion as to whether or not you should sign contracts and official matters in the State Highway Department as Director, or as Director-Engineer, or as EngineerDirector.
The executive order of the Governor, dated Octobtr 15, 1945, provided that you be appointed Director of the State Highway Department succeeding Ryburn G. Clay, Director, and did not provide for your appointment as DirectorEngineer, or as Engineer-Director, although according to your letter you hold both positions.
Code Section 95-1604 of the pocket supplement to the; Code of 1933 in part provides for the office of State Highway Director, his appointment, confirmation by the Senate, bond, and salary to be fixed by the Governor not to exceed $7,000.00 per annum.
Code Section 95-1606 of the pocket supplement to the Code of 1933 provides that immediately upon appointment and qualification of thE: State Highway Director, he shall be vested with the duties and powers of the management and control of the State Highway Department except insofar as such duties and powers may conflict with those of the State Highway Commission. This statute places the authority of the control and management in a State Highway Director and does not provide for a Director-Engineer or an EngineerDirE:ctor.
Code Section 95-1607 of the Code of 1933 provides for the appointment of a State Highway Engineer by the State Highway Board, and provides that the State Highway Board shall prescribe and fix the duties of the Engineer. The only duty provided for by statute pertaining to a State Highway Engineer is found in Code Section 95-1608, which provides that the State Highway Engineer shall prepare a report or rE:ports accompanied by a map setting forth the roads authorized by law and designated by the State Highway Board as a part of the State-aid system, for approval by the Board.
The statutes provide for a State Highway Director and a State Highway Engineer, giving the Director of the State Highway Department the authority to fix the duties of the State Highway Engineer, other than those duties prescribE:d in Code Section 95-1608.
Since the statutes provide for the appointment of a Director for the State Highway Department and vest the management and control of the State Highway Department in the State Highway Director, and do not provide for a Director-Engineer or an Engineer-Director, it is therefore my opinion that you should sign contracts and official matters of the State Highway Department of Georgia as DirE:ctor.
I am unable to find any law that would prohibit you from signing unofficial matters in the State Highway Department as Director-Engineer or Engineer-Director.

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ROADS, BRIDGES AND FERRIES-State Highway Department (1) The Director of the State Highway Department may not enter into and deliver contracts for 100% State construction projects approved by the Director of the Budget until thE: funds have been transferred to the Department. (2) The Treasurer of the State Highway Department may not make payment for work done on contracts until the funds approved by the Director of the Budget have been transferrtd to the Department.
August 30, 1946 Hon. G. T. McDonald, Director State Highway Department
Your lettE:r of August 27 acknowledged, in which you state that the Governor as Director of the Budget has given his approval in writing to a number of 100% State construction projects, and that to date funds with which to do this work have not been transferred to the credit of the State Highway Department in the StatE; Treasury.
You request my opinion as to whether or not it will be legal for you as Director of the State Highway Department to enter into contracts mentioned above and for Mr. Wisdom as Treasurer of the State Highway Department to make payment for work on the projects as the work progresses.
Paragraphs 2 and 3 of Section 15 of the General Appropriation Act approved January 29, 1943, (Ga. L. 1943, pp. 84-96) provide as follows:
"Provided, that during this war emergency, if the condition of the State warrants, the Budget Authorities may from time to time make an additional allotment from the State Emergency Fund authorizing and providing funds for the construction of necessary and emergency highways and bridges and to meet outstanding contracts.
"ProvidE:d, further, that any and all obligations and commitments negotiated by the officials of the State Highway Department, after the enactment of this law, which have not been authorized by a specific allotment from the State Emergency Fund shall be null and void."
No part of the money appropriated by this Act is to be available for expenditures of any agency of the State until the terms of Section 59 of the General Appropriation Act of 1943 have been complied with. SE:ction 59 of the Act provides as follows:
"Before an allotment from the appropriations made in this Act shall be available for expenditure by any Agency of the State, a quarterly budget shall have been submitted and approved in accordance with provisions of the Budget Act and all rules and regulations issued in accordance with the Budget Act shall havE: been complied with."
This Section requires that quarterly budgets shall be submitted and approved in accordance with the provisions of the Budget Act as set forth and contained in Section 40-407 of the Code of Georgia of 1933, which is as follows:
"Before an appropriation to any spending agency shall become available, such agency shall submit to the Governor, not less than 20 days before the beginning of each quarter of the calendar year, a requisition for an allotment of the amount estimated to be requirtd to carry on the work of the agency during the ensuing quarter, and such requisition shall contain such details of the proposed expenditures as may be required by the Governor. Such requisition shall be approved by the Governor as to all its requests, except such as

621
in the judgment of thE> Governor may not conform to the provisions of the Act of the General Assembly making appropriations, and as to such exceptions the responsible head of the spending agency shall be notified and shall have the right to be heard by the Governor before final action in the matter. After such final action shall have been taken by the Governor, he shall submit the same to the State Auditor, who shall be governed in his control of expenditures by said allotments. No allotment shall be changed nor shall transfers be made, except upon the written request of the responsible head of the spending agency and by approval of the Governor in writing. Before 10uch changes or transfE>rs shall become effective, a copy of the request and approval shall be transmitted to the State Auditor."
Section 33 of the General Appropriation Act of 1943 (Ga. L. 1943, pp. 84-96) provides as follows:
"The State Treasurer other fiscal officers are authorizE>d and directed to set up as an appropriation in this account an amount equal to the amount or amounts that is determined by the State Auditor to be a surplus in available funds after the prorating of monthly income has been made to the monthly allotments authorized under this Act. In the E>vent the income for the month is insufficient to make a 100% prorating to meet the allotments authorized under this Act, the State Auditor is authorized to utilize the necessary amount from this fund to cover the deficiency. In the event there is at any time a surplus in this account, the amount of same shall be available and is appropriated for allotment for highway construction or for other purposes, in accordance with provisions of Section 8 of the BudgE>t Act."
Code Section 40-408 of the Code of Georgia of 1933 provides: "To the end that all expenses of the State may be brought within the budget, the budget appropriation bill shall also contain a specific sum as a contingent or emergency appropriation. The manner of the allocation of such contingent or emergency appropriation shall be as follows: Any departmE>nt, commission, board, institution or other agency of the State, desiring an allotment out of such emergency appropriation, shall, upon forms prescribed by him, present such request in writing to the Director of the Budget, with such information as he may require, and the Director may allow or disallow the request in his discretion."
Section 62 of thE> General Appropriation Act of 1943 (Ga. L. 1943, pp. 84-96), provides as follows:
"No payment shall be made and no obligation shall be incurred against any fund, allotment, or appropriation made in this Act unless same has been included in the Budget of the respective agency and approved as provided by law. Every expenditure or obligation authorized or incurred in violation of the provisions of this Section shall be void. EvE>ry payment made in violation of the provisions of this Section shall be deemed illegal, and every official authorizing or making such payment, or taking part therein, and every person receiving such payment or any part thereof, shall be jointly and severally liable to the State for the full amount so paid or received."
The Code Sections and the Sections of the General Appropriation Act of 1943 hereinabove quoted provide for the procedure that the various agencies of the State government must follow in order to obtain funds for their operation.
Section 62 of the General Appropriation Act of 1943 provides in substance that no payment shall be made and no obligation shall be incurred

622
against any fund allocated or appropriation made in the Act unless same has been included in the budget of the responsible agency and approved as provided by law.
It is my opinion that you as Director of the State Highway Department of Georgia have no legal authority to enter into and deliver contracts until the funds for said contract or contracts have been transferred to the State Highway Department of Georgia.
I am of the further opinion that the Treasurer of the State Highway Depart of Georgia would have no authority to make payment for work done on contracts until the funds approved by the Director of the Budget have been actually transferred to the State Highway Department of Georgia.

ROADS, BRIDGES AND FERRIES-State Highway Department (1) Funds appropriated from surplus to match Federal highway funds may not be used to construct 100o/o State road projects. (2) A surplus in the contingent fund which has been set aside under the Budget Act as a sinking fund to retire the public debt may not be used for road maintenance and construction. (3) Notwithstanding budgetary approval, the Director of the State Highway Department m:>.y not enter into road contracts until funds have been made available to the Department.

September 3, 1946

Hon. Ellis Arnall

Governor of Georgia

In your letter of August 31 you ask my official opinion on three questions

relating to the use of State funds for 100 o/o State road projects.

First, you ask whether or not you could use Federal-State funds, as pro-

vided from State money, for a State road building program.

The General Assembly, at the 1946 session, passed House Resolution No.

146, which was approved January 28, 1946. This resolution recites that the

anticipated State income would be in excess of normal needs, and that it was

the desire of the General Assembly that such surplus sums be made available

to the agencies of the State which can perform the most useful services to the

people of the State.

After reciting such facts the General Assembly authorized the Budget

Bureau to transfer additional allotments, or so much thereof as may be neces-

sary from funds as they become available in the Surplus Account in the State

Treasury to the credit of certain accounts in the State Treasury. One of the

accounts in the State Treasury was provided for in the following language:

"Highway Department of

A-For the purpose of providing State funds to match Federal Highway Funds

available for a construction program of approximately 80 million dollars over

the next three years. $5,790,512.50 for period ending June 30, 1946, and $11,-

581,025.00 for each fiscal year thereafter."



This resolution amounts to an appropriation of said sums from the surplus

income. I gather from your letter and other information that sums amounting

to approximately six million dollars have been set aside to this account in

the State Treasury, and that it cannot, at this time, be utilized to match Federal

funds. The resolution providing for the account and appropriating money to

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it provides that such accounts are: "to be withdrawn only on approved budgets as now required by the Constitution and laws of this State for the purposes enumerated and for these purposes only."
I am, therefore, of the opinion that such funds so appropriated and set aside to match Federal Aid funds cannot be used to construct 100o/o State road projects.
Second, you state that a surplus of $7,190,000.00 is carried in the Treasury, and that it has been set aside as a debt payment reserve for the payment of State obligations, which will accrue during the period from June 30, 1947, through June 30, 1950, and ask whether or not you could use this surplus for road maintenance and construction.
The General Appropriation Act of 1943 (Ga. L. 1943, p. 86), the Appropriation Act now in force, in Sections 6, 8, 9 and 10, appropriates from annual income of the State funds to be used to retire the State indebtedness. The Act makes appropriations to the different departments of the State. Section 60 of the Appropriations Act (Page 95) requires the State Auditor to pro rate the State income to the credit of each appropriation account in the same proportion that the appropriation bears to the total appropriation. Surplus income above appropriations is required to be credited to the Income Equalization Account. Section 33 of the Appropriations Act (Page 91) provides that the Income Equalization Account is to be set up as an appropriation. The section provides that in the event the monthly income is insufficient to make a 100% pro-rating to meet the appropriations, the Auditor is authorized to utilize the necessary amount to cove:r the deficiency.
Since the income of the State varies in different months of the year, it would be improper to determine that there was a surplus in this fund until the end of the fiscal year. If there is dete:rmined at the end of the fiscal year that there is a surplus it would be available and appropriated for other purposes, where allotted in accordance with Section 8 of the Budget Act. (Ga. L. 1931, Ex. Sess. p. 94; Code 40-408).
It is my information that at the end of the fiscal year, June 30, 1946, the surplus referred to in your le:tter was set aside under the Budget Act out of the surplus in the Contingent Fund as an account to retire the public debt. This, in my opinion, has the same effect as an appropriation by the General Assembly. The surplus in the Contingent Fund having been appropriated and made available as provided in Section 30 of the Appropriations Act, for the purpose of providing a sinking fund to retire public debt cannot under Section 63 of the Appropriations Act (Page 96) be reduced or cease to be available for such purpose until the end of the fiscal year in 1947.
The General Assembly has not levied a special tax to retire the bonded .indebtedness of the State. As hereinbefore pointed out, it has provided that the indebtedness be retired from State income. When the surplus in the Contingent Fund was set aside and appropriated to the use as a sinking fund to re:tire the public debt, such funds so appropriated would be subject to the constitutional provision that it could not be used for any other purpose whatever. See Paragraph 9, Section 3, Article 7, Constitution of 1945.
Because of the .provisions of the Appropriation Act and the Constitution, as herein set forth, I am of the opinion that you cannot employ the surplus which has been set aside to pay the public debt for any other purpose:.

624
Third: In this question you ask my opm10n regarding the status of approved budgetary request ior which no funds can actually be provided.
It is my opinion that, notwithstanding the fact that you have given budgetary approval to the request of the Director of the State Highway Department to provide for the payment of certain road contracts, the Director has no legal authority to enter into and deliver these contracts until the funds for said contracts liave been made available to the State Highway Department of Georgia.
I am of the further opinion that the Treasurer of the State Highway DE:partment of Georgia would have no authority to make payment for work done on contracts until the funds approved by the Director of the Budget have been made available to the State Highway Department.
The law supporting my conclusions in answer to your third quE:stion is givE:n in a comprehensive manner in an official opinion of this date addressed to Honorable George T. McDonald, Director of the State Highway Department. A copy of this opinion is herewith enclosed for your information.
ROADS, BRIDGES AND FERRIES-State Highway Department The Director of the State Highway Department may contract for a county to maintain a road in the State-aid system by the use of convict or free labor although the FE:deral Government furnished part of the money for the construction of the road. May 29, 1947
Hon. J. C. Beasley, Director State Highway Department
You have advised me that there are certain instances in which you may wish to contract with counties to do maintenance work on public roads taken over by the State Highway Department. You advise that the county may do the work with convicts or with free labor. You also advise that you may desire to contract with the county on the basis of a stipulated sum of money per mile of the road to be maintained.
Based on these premises you are rE:questing an opinion as to whether or not you, as Director of the State Highway Department, have authority to enter into such a contract with the counties. Under Section 95-1504 of the Code of 1933 the State Highway Department has charge and control of all road or highway work designated or provided for, or done by the State or upon thE: State-aid roads, and has power to designate, improve, supervise, construct and maintain a system of State-aid roads, or such other public roads as provided for under Chapters 95-15 to 95-17.
Section 95-1701 of the Code of 1933 creates a system of State-aid roads for the purpose of inter-connecting the several county seats. Such roads are designated, constructed, improved, and maintained by the State through the State Highway Department.
At the Extra Session in 1937-38, the General Assembly amended the Traylor-Neill Act and added to the Traylor-Neill Act map all public roads in the State, including those roads in the State Post Road System. See SE:ction 95-1730, Cumulative Pocket Part, Annotated Code. There is no obligation upon the State and the Highway Department to maintain the roads unless and until said roads are formally designated as State-aid roads by appropriate action of the State Highway officials.

625
The General Assembly in 1943, (Ga. L. 1943, pp. 216-218; Section 95-1620, Cumulative Pocket Part of the Annotated Code), gave the StatE: Highway Director authority to place on the State Highway system any State-aid road deemed by him to be to the best interest of the State, vv"hen approved by a majority of the Commission.
I have cited the above stated provisions of law to show that in my opinion that all public roads taken over by the State Highway Department for maintenance would be classified as State-aid roads. Your attention is directed to Sections 95-1715 and 95-1716 of the CodE:, which provide as follows:
"95-1715. The State Highway Department of Georgia shall have authority to plan and to construct, improve and maintain the State-aid roads in any manner it may deem expedient, by free labor, by contract, or by any other method or combinations of methods, in its discretion. In so doing said Highway Department is hereby authorized and empowered to condemn and acquire a right of way for maintaining, improving and constructing said State-aid roads. The State Highway Department of Georgia is also authorized and empowered to condemn and acquire lands for borrow-pits which may be necessary or useful in the improving, reconstruction, widening, laying out, draining, altering, grading, paving, or repairing any StatE:-aid roads in this State."
"95-1716. The Highway Department is hereby authorized to construct any portion of the State-aid road system by the employment of convict labor thereon."
On June 17, 1943, Hon. J. M. C. Townsend, Assistant Attorney General, rendered an opinion to Hon. Ryburn G. Clay, State Highway Director, touching the authority of the State Highway Department to enter into contracts with the county for maintenance work on StatE:-aid roads. His conclusion based upon Code Sections 95-1715 and 95-1716 was as follows:
"Under these Code Sections you are clearly authorized to enter into such a contract with a county in this State and when so executed said contract will be a binding and subsisting obligation on both the State Highway Department and the county involved."
The specific question propounded to Judge Townsend by Mr. Clay was whethE:r or not a contract could be entered into by the Highway Department with counties to do maintenance work with the convicts of such counties, and whether or not the contract could be based on a stipulated sum of money per diem for each convict.
I can see no matE:rial difference between the question propounded by Mr. Clay and the questions propounded by you. I am of the opinion that you would have the authority to enter into a contract with the county to maintain roads within the State system.
My attention has been called to the provision contained in all project agreements entered into by the State. Highway Department and the Commissioner of Public Roads with referencE: to Federal aid. The contract provides that the Highway Department will maintain said project in compliance with Federal Acts of July 11, 1916, and November 9, 1921.
I have checked the Federal Acts. The Acts require the Highway Department to maintain the roads. They do not set forth any method to be followed by the Highway Department for maintaining the roads. That is left to State Jaw. Should the State fail to maintain the roads whE:re Federal funds are used, the Secretary of Agriculture of the United States would have the right,

626
upon notice, to maintain them and to deduct the expense from State allocations. I am, therefore, of the opinion that wherev;:;r the State has assumed the
maintenance of a road, as a part of the State-aid system, that the State could maintain the same by contract with the counties as proposed, even though the Federal Government furnished part of the money for the construction of the road.
ROADS, BRIDGES AND FERRIES-Sta;e Highway Department The Treasurer of the State Highway Department may be employed by the Director to perform secretarial services, not within his statutory duties as Treasurer, in coordinating the work of the Director and the State Highway Commission. June 18, 1947
Hon. J. C. Beasley, Director State Highway Department
Your letter of June 17th received. You request that I advise whether or not it would be legal for you to employ Mr. Nichols, State Highway Treasurer, to perform certain duties seeking to coordinate the work and efforts being made by the Commission and yourself.
Mr. Nichols, Treasurer of the State Highway Department, is a State public officer. The Act creating his office fixes his salary at $4800.00 per annum and his duties are defined by the Act as follows:
"Section 6. Immediately upon the appointment and qualification of the Treasurer of the State Highway Department, he shall enter upon his duties which shall be to receive and receipt for all funds from all sources to which the State Highway Department is entitled; to disburse such funds at the direction of the State Highway Director; to have charge of and supervise the keeping of the records, books and accounts of the State Highway Department, and to perform such oth;:;r duties as may be required of him by the State Highway Director." (Ga. L. 1943, pp. 216, 222).
The Act defining the duties of the Treasurer provides "and to perform such other duties as may be required of him by the State Highway Director." The use of this language by the General Assembly in defining th;:; duties of the Highway Treasurer makes it necessary to determine the meaning thereof, and whether or not the Treasurer would be required to perform any and all kinds of duties which the Director might require of him. If the language should be constru;:;d without any restrictions, the Director could require the Treasurer to perform engineering duties, or other duties not in any way connected with the office of State Highway Treasurer. I am, therefore, of the opinion that the language should not be construed without restrictions. I am of the opinion that the language should be construed so as to give th;:; Director power to require of the Treasurer duties not enumerated in Section 6 which are closely related to the customary duties of a Treasurer.
From the facts stated in your letter it is appar;:;nt to me that the additional duties which you v,rould like Mr. Nichols to perform are duties more closely related to secretarial duties. It further appears that such duties do not, in any way, conflict with the duties to be performed by the Treasurer as defined by the Act.
Under Section 7 of the Act the General Assembly created a State Highway Commission. The members of the Commission are appoint;:;d by the

627
Governor with the approval of the Senate, and the Governor is required to designate one member of the Commission as chairman, one as vice-chairman, and another as secretary, but such officials shall receive no additional compensation. Section 8 of the Act provides that the Commission shall meet on the first Monday in each month in regular session, which is limited to four days in each month. Call meetings may be had, not more than. two in each month, and call meetings are limited to two days. The secretary to the Board, being a member of the Board, is thus limited to four days in regular session and to two days in call meetings; and not more than two call meetings per month. The Act fails to define the duties to be performed by the secretary of the Board. The secretary of the Board being limited in days employed could not perform the duties to bring about coordination such as outlined in your letter. Because of these facts, your reason for desiring to employ a coordinator to perform secretarial duties is quite apparent to us.
Having reached the conclusion that the additional duties to be pe;rformed are not ordinary duties required of the Treasurer, but are secretarial duties, I am of the opinion that the rule that a public officer takes his office cum onere, and so long as he retains it he undertakes to perform its duties for the compensation fixed, whether such duties be incr~:ased or decreased, as announced by the Supreme Court in Twiggs v. Wingfield, 147 Ga. 790, and Mitchell v. City of Thomasville, 50 Ga. App. 304, would not apply. Of course, if the duties to be performed were duties which would ordinarily attach to the office of Treasurer, the salary could not be increased except by the authority authorized to fix the; salary; in this case the General Assembly. However, taking the Act creating the State Highway Commission, and the office of State Highway Treasurer, as a whole, it seems to be the intention of the General Assembly that secretarial duties should not be require;d of the Treasurer.
By virtue of Paragraph 4, Section 89-101, Code of 1933, a pe;rson can not hold two State public offices. The office of Highway Treasurer is a public office created by the General Assembly. The employment of one to pe;rform certain duties does not constitute a public office. See Board of Education of Doerun v. Bacon, 22 Ga. App. 72; Elliott v. City Council of Augusta, 49 Ga. App. 568.
I do not find anything in the statute which would prohibit the State Treasurer from accepting employment with the State for the; performance of duties not required of his office. The powers conferred by Section 95-1504 of the Code upon the State Highway Department were by Act of 1943, pp. 216, 222, conferred upon the Director of the State Highway Department. Under this Section power is given to secure consulting advisors in important technical matters, including the qualifications of technical employees and to employ clerical assistance and incur other expenses necessary to carry on the operation of the State Highway Department.
I am, therefore, of the opinion that it is legally permissible for you to employ Mr. Nichols to perform the additional duties under such contractual terms of renumeration as may be agreed upon by the parties; provided that such contract for renumeration shall be first approved by the Budget Commission.

628
ROADS, BRIDGES AND FERRIES-State Highway Department Members of the State Highway Commission may not be paid a per ditm and expenses for attending contract lettings which do not occur on days when the Commission is in regular or called session. July 17, 1947
Hon. H. E. Nichols, Treasurer State Highway Department
Your letter of July 14th recevied. You request that I advise whether or not you can pay State Highway Commissioners for expensE: and per diem for attending contract lettings on June 20.
On May 14, 1946 Hon. L. C. Groves, Assistant Attorney General, rendered an opinion for Hon. Tom Wisdom, Treasurer, which also dealt with the same question presented in your letter. I am sure that you have on file in your office the opinion rendered by Mr. Groves. I concur with Mr. Groves in his opinion.
Code Section 95-1602 of the Cumulative Supplement to the Annotated Code creates a commission and provides in part as follows:
"Each member of the Commission shall receive as compensation seven dollars per diem while engaged upon attendance at meetings of the Commission, and shall be entitled to actual expenses while so engaged."
Section 95-1603 of the Cumulative Pocket Part to the Annotated Code provides in substance that the Highway Commission shall meet on the first Monday in each month at the State Capitol. The Commission shall not remain in regular sE:ssion for more than four days in any one month. Call meetings of the Commission may be had at such times as are deemed necessary by the chairman or a majority of the members thereof; provided that not more than two call meetings shall be held in any one month and such call meetings shall be limited to two days.
As I construe the law, it does not provide for payment of a per diem and expenses for State Highway Commissions for attendance upon contract lettings, where such lettings do not fall on days when the Board is in session either at a regular or call meeting. If the Chairman sees fit to call a meeting of the Board to convene on the day set for colltract letting and the member attends pursuant to such a call, such member as may attend would be entitled to collect his pE:r diem and expense. If there is no regular or call meeting on that date the member would not, in my opinion, be entitled to per diem or expense for attendance.
ROADS, BRIDGES AND FERRIES-State Highway Department The conditional approval by the Governor of Section B of the appropriation to the State Highway Department by House Resolution No. 146 (Ga. L. 1946, pp. 787, 790) was a veto of that Section, and the State Highway Department may use the appropriation for secondary roads to build such secondary roads as it sees fit whtther they be on the State system or be rural post or farm to market roads. July 29, 1947
Hon. J. C. Beasley, Director State Highway Department
Your letter of July 3, asking whether or not House Resolution No. 146, Acts 1946, pp. 787, 790, is valid, received.

629
The General Assembly considering the condition of State finances at the time of the passage of the Resolution, and finding that in the opinion of th~ General Assembly the anticipated income would be in excess of the normal operation needs of the State, and being desirous of making the surplus available to the agr;ncies of the State which could perform the most useful services to the people, passed the Resolution authorizing the Budget Bureau to transfer additional allotments, or so much thereof as became available in the surplus account to the credit, in the State Treasury, of the Highway Department and others. Only that portion of the Resolution which deals with the State Highway Department will be considered in this opinion. That portion provides as follows:
"HIGHWAY, DEPARTMENT OF "A-For the purpose of providing State funds to match FE:deral Highway Funds available for a construction program of approximately 80 million dollars over the next three years. $5,790,512.50 for period ending June 30, 1946 and $11,581,025.00 for each fiscal year thereafter.
"B-Of the amount herein appropriated a sum equal to that which is now or may htreafter be appropriated to the State of Georgia by the Federal Governmr;nt for the construction of secondary highways, farm to market roads, rural post roads, and school bus routes, is specifically appropriated to match Federal funds for said purposes. The total amount of Federal funds so allocated and State funds herein appropriated to match the Federal appropriation shall be used as follows:
"Two-thirds of the total amount for the construction of rural post roads and farm to market roads as defined in the Act of the General Assembly approved March 18, 1937 (Georgia Laws 1937, Pages 912-918), said funds to be distributr;d and used as provided in said Act. One-third of the total amount so designated to be used for the construction of secondary roads now on the State Highway System."
The Resolution was presented to Governor Arnall who entered approval of the bill subject to the following notation:
"(NOTE) "By Governor "That item in House Resolution No. 146 relating to the Departmr;nt of Highway Section 'B' which is a new paragraph in the form of an amendment to the original resolution be and the same is hereby approved provided, however, the said Section 'B' in the form of an amendment shall apply as an average for the thrr;e years for which Federal funds have been provided under Public Law 521, 78th Congress, Chapter 626, Second Session."
The journals of the General Assembly show that the 1946 session adjourned sine die on January 28, 1946, the same day upon which Governor Arnall entered approval and made notation and objection. The journals do not show, as far as I can find, that the bill was ever returned to the General Assembly after he had entered his conditional approval of the bill. Howr;ver, since it was being signed on the day of adjournment I consider that it was unnecessary that the matter be referred to the General Assembly for consideration, since it does not show the hours of his signing.
The Resolution must be considered as an appropriation bill, and as appropriating accumulatr;d surplus from the surplus fund to specific funds to match Federal funds. Governor Arnall in approving the bill approved the gen-

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era! provisions thereof. As noted above Section B of the Highway Department appropriation provided that the total amount of Federal funds and the fund appropriated by the Resolution to match same, for the construction of secondary highways, farm to market roads, rural post roads should be spent twothirds for the construction of rural post roads and farm to market roads and one-third for secondary roads on the highway system. Governor Arnall refers to said Section B and statE:s:
"the same is hereby approved provided, however, the said Section 'B' in the form of an amendment shall apply as an average for the three years for which Federal funds have been provided under Public Law 521, 78th Congress, Chapter 626, Second Session."
Governor Arnall's approval of Section B is, therefore, given conditionally, it being approved if the provisions of the Resolution should bE: such that the one-third allocated to roads on the system could be used in the first fiscal year for which the appropriation resolution applied. The Resolution applied to appropriations for fiscal years ending June 30, 1946, June 30, 1947, June 30, 1948.
The General Assembly made the Resolution applicable to the years as fiscal years, and I can not construe that it was the intention of the Gentral Assembly that the funds could be blocked together into one year, so that the total one-third for roads on the highway system could be spent in the year ending June 30, 1946. The objection Governor Arnall made to the Resolution was that he could not approve same unless the onE:-third for the three years could be spent in one year. I am, therefore, of the opinion that the notation made by Governor Arnall had the effect of vetoing and .striking from the Resolution all of Section B under reference Highway Department, which provides for a division of the funds on the basis of two-thirds to one-third.
The question, therE:fore, arises did the Governor have the power and authority to approve a part of the Resolution and disapprove another part. Paragraph 15 of Section 1, Article 5 of the Constitution provides as follows:
"Governor's veto. The Governor shall have the revision of all bills passed by the General Assembly before the same shall become laws, but two-thirds of each house may pass a law notwithstanding his dissent; and if any bill should not be returned by the Governor within five days (Sunday excepted) afttr it has been presented to him, the same shall be a law; unless the General Assembly, by their adjournment, shall prevent its return. He may approve any appropriation, and disapprove any other appropriation, in the same bill, and the latter shall not be effectual, unless passed by two-thirds of each House."
It will be noted from the last sentence of the above quoted provision of the Constitution that the Governor may approve or disapprove, any part of an appropriation bill, even though they all be included in the same act. The parts given approval will be valid and the parts disapproved will be invalid. In determining whether or not the Resolution could be read to mean that the Highway Department could combine the appropriations for the three years into one year, I have investigated and find that the Federal Government allots for Federal-aid roads $5,648,564.00, for secondary roads $4,310,453.00, and urban roads $1,622,008.00 for each separate fiscal year. The funds becomE: available during the fiscal year and may be usE:d in that or the succeeding year. Upon further investigation I find that by December 31, 1946, Governor Arnall and the Highway Director, under his administration, had let contracts on the

631
State system in the amount of $4,627,405.92 and had made program for other allotments in the sum of $1,605,750.00 or a total of $6,233,155.92. After State matching with the Federal appropriation the amount which would have been available in each fiscal year under the Resolution for roads in the State system would have bee:n $2,737,863.33 or approximately that amount. It will be seen from these figures that approximately the total amount for roads on the System had been either allotted in contracts or tagged under the program arrangement, thus leaving nothing, or practically nothing for the construction of roads on its system by the State Highway Department. The $5,648,564.00 allotted by the Federal Government, which must be matched by the State, can not be spe:nt on any secondary road, whether they appear on the State system or not. These funds are set up and appropriated for use on the Federal system of roads in the State.
1\fy investigation also reveals that during the period ending De:cember 31 Governor Arnall and the Director of the State Highway Department serving under his administration, had contracted for post rural roads off of the State system in the sum of $96,072.00 and had programmed for the expenditure for rural roads off the system the sum of $679,000.00.
I investigated the above facts for two purposes: first, to determine the administrative construction placed by Governor Al'nall and the Director se:rving under his administration, as to the effect of his notation on Section B of the Highway appropriation, and second, to determine the position thlil Highway Department would be in if the Act should be construed to mean that the remaining funds had to be placed on post rural roads in the State system.
On the first ground I found that by administrative action Governor Arnall, and the Dire:ctor serving under him, considered Section B of the Highway appropriation as being vetoed and not being in effect or of force. On the second theory I find that if I should reverse the administrative construction placed by Governor Arnall and the Director serving under him in his administration, the State Highway Department would not during the next two years be able to do any work on the secondary roads within the, State system of roads, and the entire program would have to be: abandoned and a new program worked out which would in effect mean that there would be but very little road work of any kind during the present year.
I am, therefore, of the opinion that Governor Arnall vetoed the provisions of Section B under Highway Appropriations of the 1946 Resolution and that the appropriation for secondary roads can be: used by the State Highway Department to build such secondary roads as it may see fit, whether or not they be on the State system or whether they be rural post roads or farm to market roads as defined in the Act of the General Assembly approved March 18, 1937.
I am of the further opinion that the Director of the State Highway Department has power to divide such funds in such manner as he see:s fit and to use such portion thereof on the rural post roads and farm to market roads which are not on the State system, where he first files plans and obtains Federal approval as required by the Federal Appropriation Act and the Bureau of Roads.

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ROADS, BRIDGES AND FERRIES-State Highway Department The State may not pay a claim for damages for the death of a person caused by the negligent operation of a State highway truck by an employee of the State Highway Department while on business for the Department.
August 26, 1947 Hon. B. E. Thrasher, Jr. State Auditor
Your memorandum of August 20, outlining reasons which you claim to be the basis of legal authority for the payment of $5,000 to Mrs. Joe Hall, received.
In ord~;r to properly, and clearly, answer your memorandum certain facts connected with the claim should be outlined and stated.
In 1945, one Adcock, an employee of the State, was sent from Cartersville to Augusta with a highway truck on business for the State. On his way returning home the truck participated in an accident which resulted in the death of Joe Hall. Mrs. Hall employed an able attorney to represent her. This attorney ~;ntered a suit for damages against Adcock in the courts at Cartersville. The case was tried and the jury after hearing all the evidence, and considering all the facts, the negligence of Adcock and of the deceased, the age and earning capacity of the deceased, returned a verdict in favor of Mrs. Hall, the widow, against the defendant Adcock for a sum of $2,000. The State Highway Department did not participate in the trial, and was not given the opportunity of inv~;stigation and determining the causes of the death of Mr. Hall.
After the verdict was obtained the attorney applied to the Highway Department, requesting the Highway Department to pay same upon the theory that during the administration of former Governors the State had carried liability insurance on its cars. He then raised the question that the State was morally liable. He admitted that there was no legal State liability. Certain contractual obligations wtre settled by officers of the State, and the fact of their settlement was made known to the public in the newspapers of the State. The attorney then reversed his position and now contends that the State is subject to suit, and in fact has filed a suit to recover damages against the Highway Department.
You claim that you and other members of the Committee have the right to settle this claim by reason of a provision, Section 1 of the Act approved February 26, 1941. (Ga. L. 1941, p. 597). Said Section is as follows:
"The Chairman of the State Highway Department, the Governor and the State Auditor are authorized and empowered to audit all claims and obligations of the State Highway Department at any time existing or outstanding, other than Refunding Bonds, Refunding Notes and Highway Certificates, and to approve such claims and obligations for payment by said Department."
You, and Governor Thompson, approved the payment of the claim in the sum of $5,000 and sent the same to the Director of the State Highway Department for his approval. The Director of the State Highway Department declined to concur with the recommendation made by you and Governor Thompson, upon the theory that he did not consider the claim to be a legal claim against the State, and if it was, he did not have facts which would authorize him to decide on the amount of the liability. The question, therefore, presented

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by your mE:morandum is whether or not the position taken by you and the Governor, or the one taken by Mr. Beasley is the legal position.
In the first place there is some question as to whether or not Section 1 of the 1941 Act remains of force and effect. Undoubtedly that Section of the Act was affected by the Act approved March 17, 1943. (Ga. L. 1943, pp. 216, 222). The 1943 Act repealed an Act of 1941, pp. 290, 291, creating a State Highway Board. The 1941 Act provided that the Chairman of that Board, together with the Governor and Auditor, would be authorized and empowered to audit claims and obligations of thE: Highway Department. Since the 1943 Act there is no Chairman of the Highway Department. The 1943 Act does not, in any part thereof, transfer any duties of the Chairman of the Highway Department to the Director of the Highway Department. On the contrary the 1943 Act specifically provides that upon the appointment and qualification of the State Highway Director, created by the 1943 Act, the Director shall become vested with the duties and powers of the management and control of the State Highway Department, except insofar as such duties and powers may conflict with those of the State Highway Commission. It may be possible that the courts would say that the Director became chargeable with the duties as provided in Section 1 of the 1941 Act, however, it is not ctrtain that they would do so.
Should the courts hold that the Director provided for in the 1943 Act be vested with powers of the Chairman of the State Highway Department provided for in the 1941 Act, the claims and obligations which the Committee would be authorized to approve and pay could only be the legal claims and obligations of the State Highway; Department. They could not approve and pay a claim for which the State is not liable under the law.
"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 an officer done in the exercise of a power not conferred." Section 89-903, Code of 1933.
"Before an officer can be required to pay out public money, or be justifi~d in doing so, those who demand its payment should be able to show a clear provision of the law which entitles them to receive it." Freeney, treas. v. Geoghegan, et a!., 177 Ga. 142.
Acts of negligence or wrong conduct, even if such exist on the part of a State officer can not be plE:aded as an estoppel to prevent the State from asserting its right to collect the debt. Booth v. State of Georgia, 131 Ga. 750.
The State can only be estopped from asserting her right to her own property by legislative act or rE;solution. State of Georgia v. Paxson and Cannon, 119 Ga. 730.
There is a very long line of decisions by the Appellate Courts of this State wherein it has been ruled that the State, as a sovereign, is not subject to suit and is not liable unless made so by legislative authority. This is so because the State is nothing more than the people of the State, and before the govtrnment formed by them can be made liable for the act of any officer, they must first authorize the officer or employee to bind them, and the Legislature of the State is the only medium through which this can be done.
The courts of the State unanimously agree that the State is not liable for damages occasioned by the negligence of the officers and employE:es of the State. The only instances where the people of the State have seen fit, acting through their representatives, to subject themselvE:s to such liability is for

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damages which occur on a bridge or the approach necessary for the use of the bridge. Even then the State can not be sued directly. Such suit must first be filed against the county wherein the bridge is located, the county be:ing primarily liable, with the right of the county to vouch the State in to defend the suit for damages, and to become ultimately liable for the damages occuring because of a defective bridge. The Court of Appeals in Mitchell County v, Dixon, 20 Ga. App. 21, held that a county is not liable for an injury produced by a defect in a private way or road; that it was only liable for injuries occurring on bridges.
The Court of Appeals in Ellis v. Floyd Coun:y, 24 Ga. App. 717, held that a county is not liable to suit unless made so by law expressly or by necessary implication. They followed a ruling of the Supreme Court in the case of Millwood v. DeKalb County. 106 Ga. 743.
The Supreme Court of the State in Hubb;lrd v. County of Fulton, 144 Ga. 363, announced the same principle of law.
Among the later decisions of the Appellate Courts adhering to the same principle will be found the decision rendered by the Supreme Court of the State in the case: of Tounsel v. State Highway Department, 180 Ga. 112, and the case of State Highway Department v. Parker, decided May 29, 1947, 43 S. E. 2d 172. In the: Tounsel case the court stated:
"Even if a money judgment for personal injuries be obtained against the State Highway Department, there would be no funds in their possession subject to the satisfaction of such judgment."
The reason that there would be no funds for the payment of a judgment for personal injury is because the same would not be a legal obligation against the State. If it was a legal obligation funds could be provided by taxation, but you can not provide funds for an illegal claim by taxation.
In your memorandum you take the position that the language of the 1941 Act gives you, the Governor and the Director of the State Highway Department power to declare claims for torts legal. Your attention is called to Section 95-1505 which gave the Highway Department power to make settlement of all claims presented to it under oath. The Supreme Court in. the Tounsel case, supra, said that Section certainly does not include the right to sue the State Highway Department for damages for personal injuries due to negligence of its engineers. Certainly, if the courts of the State do not have the right and power, under that language to render judgment against the State for personal injuries, a Committee would not have the right where the General Assembly has not made the State liable for damages for personal injuries caused by the negligence of its employees.
Under Section 23-701 (6) the ordinaries of the State, when sitting for county purposes have original and exclusive jurisdiction over the examination, settling and allowing of all claims against the county. Under Section 23-1601 the ordinary was required to audit all claims against his respective county and to register all claims which he allows. The: language of the 1941 Act imports the same obligation and duty to the Governor, the Auditor and the Director of the Highway Department. With the duties of the Ordinary to audit, settle and approve or disallow claims the Court of Appeals, and the Supreme Court of the State, have from time to time held that the county was not liable for any claim, or subJect to any suit, unless made so by legislation. Cases holding to this effect have already been cited herein.

635
In your memorandum you state that Paragraph 1, Stction 7, Article 7 of the Constitution of 1945, which enumerates the taxing power of the State is broad and levied for any purpose which is incidental to the support of the State government. I can not concur with you that the Constitution should be construed as being broad, because the courts have construed the same strictly and taxes can not be levied to pay any claim for any purpose other than the purposes therein enumerated. Similar constitutional provisions refer to the right of counties to levy tax. See Paragraph 1, Section 4, Article 7 of the Constitution. Under the counties right to levy tax they could levy a tax for quarantine purposes and to support the general government of a county. In Daniel v. Pu;nam County, 113 Ga. 570, the Supreme Court stated that there was no authority or law for county officials to levy a tax to purchase vaccine as a cost against the county. It was claimed, in the case of Smith, commissioner v. State of Georgia, 160 Ga. 857, that the Constitution by providing that the General Assembly could delegate to a county the power to levy a tax for necessary sanitation, that the county could pay services under the Vital Statistic Law. The court held that the county could not. In Elder v. Collier, et al., 100 Ga. 342, it was contended that where the Constitution gave the county a right to levy a tax to support paupers that the county would have the right to levy a tax and pay a pension to indigent Confederate soldiers and widows. The court held that the county had no such power. Justice Lumpkin in arriving at such conclusion stated in part as follows:
"While we regret that the provisions of our Constitution relating to county taxation are so stringent to txclude from the benefits provided for in the act
of 1875 * * * remaining veterans *' * * we have no election but to carry out
the will of the people as expressed in their organic law. For ourselves, we would have been very glad indeed if these old heroes had been permitted to
continue to draw their annual stipend from the county * * *', but this, we
think, was forbidden by the people themselves in convention assembled." The Supreme Court, again in Verdery, et al. v. Walton, 137 Ga. 213,
ruled to the same effect.
The Constitution of 1877 gave counties the right to levy a tax for road purposes, and for litigation. A warden employed to supervise convicts and road building failed to properly perform duties, and a hearing was had before the Prison Commission. The county sought to employ counsel in the case. The Supreme Court in Humber, et al. v. Dixon, et al., 147 Ga. 480, ruled that tax money could not be used to pay the attorneys fees in such case, because thco Constitution did not authorize the levying of tax for such purposes.
From the above decisions, and others which could be cited, it clearly appears that there is no provision in the Georgia Constitution which provides for the levying of a tax to pay a claim for damages, where the General Assembly has not provided that the State should be liable. In Brunson v. Caskie, et al., 127 Ga. 501, it was held that before the writ of mandamus will issue to compel the county commissioners to issue warrant to pay a debt, it must appear that the debt comes within the classes provided in the Constitution for which a tax may be levied. This rule was followed again in Barksdale v. Hayes, et al., commissioners, 134 Ga. 348..
You seek to justify the payment of $5000, where a verdict was rendered for only $2000 by a jury, upon certain resolutions passed by the General Assembly compensating persons for the death of members of the family and for

636
personal InJury. Since the State is not liable for the negligence of its employ~;es, and is liable for suit only when the General Assembly provides for suit, and the debt must come within the purpose for which taxes may be levied, the State owes none of such parties anything, and the granting of payment to them by the General Assembly amounts to no more than a donation or gratuity. The people of the State have expressly forbidden such payments from their tax fund. In the Constitution of 1877, as well as in the Constitution of 1945, the p~;ople of the State provided:
"The General Assembly shall not by vote, resolution, or order, grant any donation or gratuity in favor of any person, corporation or association."
See Paragraph 2, Section 1, Article 7 of the Constitution. The General Assembly has never seen fit to provide that the State would be liable to all persons who were injured or damaged by reason of the negligence of its employees. The giving of such benefits to a few, to the exclusion of the others, make such gift by the General Ass~;mbly a pure gratuity or donation. In your memorandum you refer to Section 40-408 which provides for a contingent appropriation. That Section is a part of the Budgetary Act of 1931. The effect of that provision is to provide that where the General Assembly has made legal appropriation, and the Departments can not carry on the functions of the State, the Budget Commission may take from the contingent fund a sp~;cific sum to meet and carry on the required public services for which the money may be levied and appropriated under the Constitution. It does not, in my opinion, mean that the Director of the Budget could set aside any funds from the contingency appropriation to pay claims for which the State is not liable under the laws as they exist today. The other citations made by you have bE:en considered. They do not, in my opinion affect the ruling herein made. On March 13, 1946, I rendered an opinion addressed to Governor Arnall wherE:in I held that the State could not pay a person who had been injured by reason of the negligence of an employee. I see no reason why I should change or overrule that opinion since I think it was correct then, and is correct now. If there is any moral obligation on the part of the people of the State to pay damages that may be occasioned by reason of the negligence of the persons employed by the State, the General Assembly of the State should change our present laws, and the people of the State should change our organic law so as to authorize the levy of a tax to meet that moral obligation. However, I have no legislative power, and it is not within my province to change the laws that the people have themselvE:s established, and that which they have established through their Representatives as provided for under our State Constitution.

637
ROADS, BRIDGES AND FERRIES-State Highway Department The duties of equalizing highway funds and distributing road building and repairing are vested in the Director of the State Highway Department, with the State Highway Commission acting in an advisory capacity.
. November 17, 1947 Hon. B. E. Thrasher, Jr. State Auditor
I am pleased to acknow!tdge your recent request for an opinion on the following question:
"In order for funds to be legally expended on road building and road repairing, is it not the requirement of Jaw that the expenditures be made on projects which have been designated and specifically approved by the Highway Commission?"
The very question which you are asking was propounded by Honorable Ellis Arnall when ht was Governor of Georgia, to Honorable T. Grady Head who was at that time Attorney General. Under date of March 22, 1943, my distinguished predecessor rendered his official opinion to Governor Arnall in which he held the following:
"The matter of equalization of highway funds and the distribution of road building and repairing is an important part of the management and control of the State Highway Department. The language in Section 15 is too vague and general to constitute a conflict with the duties and powers of the Highway Director as provided for in Section 4 of the Act.
"It is therefore my opinion that the Act as a wholt does not confer on the Highway Commission the power to equalize funds and distribute road building and repairing, but construing said Act in its entirety and in accordance with the legislative intent said Commission constitutes an advisory body with whom the State Highway Director may consult in performing these functions."
The Section 15 referred to in tht above opinion is contained in the State Highway Commission Act approved March 17, 1943. (Ga. L. 1943, pp. 216-222).
The law relating to this inquiry has not been amended or altered since the above opinion was rendered.
After having carefully studied the opinion rtndered by my predecessor, I am of the opinion that same is correct. I therefore concur in his opinion rendered March 22, 1943, as above set forth.

638
SHIPPING AND SEAMEN-Sta;e Ports Authority (1) The Act of 1946, pp. 60-62, authorizing the State Ports Authority to covenant for and on behalf of the State for the payment by the State of the cost of maintail)ing, repairing and operating projects acquired or constructed under the State Ports Authority Act violates the limitations of the 1945 Constitution upon an increase in the State indebtedness.* (2) The Act of 1946, pp. 163-165, appropriating and allocating to a special treasury fund rentals to be received from the Western and Atlantic Railroad for the use of the State Ports Authority in securing refunding bonds to be issued by it violates the limitations of the 1945 Constitution upon an increase in the State indebtedness, and the Constitutional provisions for appropriation control.*
April 25, 1946 MEMORANDUM
Governor Arnall forwards a letter from Mr. Sumter Kelley concerning the State Ports Authority, togethE::r with a proposed copy of 240 warrants to be signed by the Governor and Comptroller General pledging the credit of the State to the payment of such warrants out of a special fund arising from rentals of the Western & Atlantic Railroad, and together with a proposed order to be signed by the Governor creating a special fund to be set aside out of the rentals arising from the lease of the Western & Atlantic Railroad from January 1, 1950 to December 31, 1969.
The rentals covering said period of time aggregate the principal amou-qt of $10,800,000.00.
Governor Arnall in his letter accompanying the documents mentioned states:
"I will be most grateful if you will get in touch with Sumttr and Charlie Go\ven about this. I will be glad to do anything legally proper to expedite this work."
The forms of the two proposed instruments seem to be clear and in point with Act No. 628 approved FE::bruary 1, 1946.
To my n1ind there are serious legal questions as to the authority for the issuance of the warrants as proposed and for the transfer of the rentals to a specific fund for the payment thereof.
The State Ports Authority was created by the GenE::ral Assembly by an Act approved March 9, 1945, (Ga. L. 1945, pp. 464-480). The Authority is created as a body corporate and politic, and the Act says in Section 2 that the body corporate and politic shall be deemed to be an instrumentality of the State of Georgia. The powers of the corporation are very broad and comprE::hensive. It is authorized to borrow money for any corporate purpose and to issue negotiable revenue bonds payable from earnings of such projects as it may set up, and to provide for the payment of the same and for the rights of the holders thE::reof. See Section 4 of the Act.
The power of the Authority to issue revenue producing bonds is granted as outlined in Section 5 of the Act. This Section in part provides:
"The principal and interest of such revenue bonds shall be payable solE::ly from the special fund herein provided for such payment."
Section 6 of the Act provides in part:
*So held in State Ports Authority v. Arnall, Governor, et al., 201 Ga. 713, decided January 7, 1947.

639
"Revenue bonds issued under the provisions of this Act shall not be deemed to constitute a debt of the State of Georgia or a pledge of the faith and credit of the State, but such bonds shall be payable solely from the fund hereinafter provided therefor from earnings, and the issuance of such revenue bonds shall not directly or indirectly or contingently obligate the State to levy or to
pledge any form of taxation whatever therefor from earnings, * * *' to make
any appropriation for their payment. Neither the State nor the Authority shall be obligated to pay the principal of or the interest on such revenue bonds except from earnings of the project or projects for which they shall be issued."
The Act, after providing for thE> issuance of revenue bonds, provides that the Corporation may execute a trust indenture pledging the income to the payment of the debt created by the issuance of the bonds. The Authority is authorized to fix and revise from time to time fees and rentals for the use of the projects and for the services and facilities furnished by thEi Authority so as to produce income for the payment of the indebtedness created by the issuance of the bonds.
The Act was amended by Act No. 516 approved January 30, 1946. However, the amendment did not deal with or change the specific authority given the corporation for the issuance of revenue producing bonds.
Section 10 of the Act creating the Ports Authority dealt with the revenue and earnings of the corporation, and required the corporation to set aside the earnings as a sinking fund to retire the bonds, and the 1946 Act amended this Section by adding thereto a new paragraph which provided in part as follows:
"Inasmuch as such project or projects will constitute a part of the system of state docks and the power of taxation may be exercised by the General Assembly for the purpose of maintaining a system of state docks, the Authority may, by resolution passed prior to the issuance of any bonds under the provisions of this Act or by the trust indenture securing such bonds, covenant for and on behalf of the State of Georgia for the payment of said State of thEi cost of maintaining, repairing and operating any project or projects ac-
quired or constructed under the provisions of this Act, * * * and such resolu-
tion shall have the force of contract between the State and the holders of such bonds issued for such project or projects."
The bonds which the Authority are authorized to issue, under the terms of the Act, should not constitute a debt against the State. By the amendm~;nt approved January 30, 1946, the Authority is authorized to enter into a contract on behalf of the State which has the effect, to my mind, of creating a debt of obligation to be fulfilled by the State of Georgia for the full period of time for which there may remain unpaid any other revenue producing bonds. The amendment authorizes the Authority to contract for the State binding the State to maintain, repair and operate the projects acquired or constructed under the provisions of the Act. I think that the amendment has the effect of violating the provisions of Paragraph 1, Section 3, Article 7 of the Constitution of 1945 which provides that no debt shall be contracted by, or on behalf of, thEi State, except to supply temporary deficit as may exist in the treasury becau~e of delay in collecting the tax of that year, or to repel invasion, suppress insurrection and defend the State in time of war, or to pay the existing public debt.

640
Such a debt under this Section of the Constitution is limited to five hundred thousand dollars and any loan made for the purposes enumerated in the Constitution shall be repaid out of the taxes le.vied for the year in which the loan is made. The debt may be increased to three million, five hundred thousand dollars for one purpose-the payment of school teachers.
The amendment of 1946 being unconstitutional the power of the Corporation to issue bonds is limited to that authorized in the original Act. Being limited the only bonds that they can legally issue would be bonds to be retired from the income arising from the ope;ration of the projects constructed or acquired by the Corporation, and same could not and would not be a debt against the State of Georgia. The Authority through its attorneys, Mr. Sumter Kelly and Mr. Gowen, have requested the Governor to issue 240 warrants against a special fund to be set up in the treasury by the Governor from rents of the Western & Atlantic Railroad for years beginning 1950 and ending in ~969, said warrants to be payable to the State Ports Authority and to be assignable by them to secure payment of the principal and interest of bonds to be issued by the Authority. They claim as authority for their request Act No. 628 approved February 1, 1946. Section 1 of the Act provides as follows:
"The Governor shall be and he is hereby authorized and empowered to set aside the rentals arising from the lease of the Western and Atlantic Railroad from January 1, 1950 to the date of expiration of said existing lease, to the credit of a special treasury fund for the use and benefit of the State Ports Authority. The proceeds from said rentals shall be deposited as received to the credit of said fund and shall be used solely and exclusively for the purpose of paying the principal of and the interest upon bonds of the State Ports Authority issued pursuant to the Act creating the said Authority."
The State Ports Authority is an instrumentality of the State. The revenue bonds proposed to be issued are to be issued by such instrumentality. The scheme is to avoid the terms of the original Act which provided that the bonds should not become a debt against the State. By Section 1 of the Act approved February 1, 1946, the proceeds from the rentals of Western & Atlantic Railroad is to be set aside and to be used exclusively for the purpose of paying the principal and interest of the bonds issued by the Authority. This, to my mind, constitutes a debt created in direct conflict with Paragraph 1, Section 3 of Article 7 of the Constitution.
The scheme proposed amounts to the creation of a bonded indebtedness which is in direct conflict with Paragraph 2, Section 3 of Article 7 of the Constitution, which provides that the bonded indebtedness of the State shall never be increased, except to repel invasion, suppress insurrection or defend the States in time of war. See Dortch, et al. v. Southeastern Fair Association, et al., 182 Ga. 633; Barwick v. Rober~s, commissioner, et al., 188 Ga. 655; Barwick v. Roberts, et al., 192 Ga. 783.
I am not unmindful of the ruling of the court in Wright, comptroller general v. Hardwick, Governor, 152 Ga. 302, where the Supreme Court held, in effect, that an Act of the General Assembly authorizing the Governor to set apart the rental of Western & Atlantic Railroad for a limited period, as a special fund, was not unconstitutional, and that the setting aside of such fund would not create a debt in controvention of the Constitution. '
In the Wright case, supra, the Act provided that the Governor should have the right to set aside the rental and draw his warrants thereon to secure a

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fund to pay legal debts of the State which were in existence at that time. The case, therefore, differed from the question involved in the present case because under the present Act a State agency is creating a debt to be paid out of a contingent fund in the future, and the agency of the State is issuing bonds as :vidence of the indebtedness so created.
It is my opinion that the creation of a special fund by order of the Governor and drawing warrants thereon is illegal because of other reasons. It constitutes the drawing of money from the treasury without an appropriation. Paragraph 11, Section 7, Constitution of 1945, Article 3 provides:
"No money shall be drawn from the treasury except by appropriation made by law."
The people of the State in the adoption of the Constitution of 1945 set up a constitutional control of the appropriations. Paragraph 2, Section 9, Article 7 of the Constituti<m of 1945 provides as follows:
"Each General Appropriation Act, with such amendments as are adopted from time to time, shall continue in force and tffect for each fiscal year thereafter until repealed or another General Appropriation Act is adopted; provided, however, that each section of the General Appropriation Act in force and effect on the date of the adoption of this Constitution of general application and pertaining to the administration, limitation and restriction on the payment of appropriations and each section providing for appropriation of Fed:ral Grants and other continuing appropriations and adjustments on appropriations shall remain in force and effect until specifically and separately repealed by the General Assembly."
This provision of the Constitution adopts the Sections of the General Appropriation Act of force at the time of the adoption of the Constitution pertaining to the administration, limitation and restriction on the payment of appropriations.
Section 59 of the General Appropriation Act of 1943 (Ga. L. 1945, pp. 84-96) directs that before any allotment from the appropriations made shall be available for expenditure by any agency of the State a quarterly budget shall be submitted and approved in accordance with the provisions of the Budget Act and all rules and regulations issued in accordance with the Act. Section 62 of the General Appropriation Act provides in part as follows:
"No payment shall be mad:' and no obligation shall be incurred against any fund, allotment, or appropriation made in this Act unless same has been included in the budget of the respective agency and approved as provided by
law * * *"
This Section also in substance provides that every expenditure obligation authorized or incurred in violation of the provisions of this Section shall be void, and shall be deemed illegal, and the official authorizing or making such paym:nt, or taking part therein, shall be jointly liable to the State.
The rental fund received from the Western & Atlantic Railroad is a part of the general fund belonging to the State. The rental for years of 1950 through 1969 has never yet been collected and no appropriation thereof has betn made. The Constitution as hereinbefore pointed out prohibits the payment of any fund from the treasury which has not been legally appropriated by the General Assembly
In reaching my conclusion I have taken into consideration the historical fact that in previous years the General Assembly has allocated the Western

642
& Atlantic rentals, and that same has been held to be legal. Such allocation, however, was made prior to the: adoption of the Constitution of 1945. Paragraph 4, Section 9, Article 7 of the Constitution of 1945 provides as follows:
"The appropriation for each department, officer, bureau, board, commission, agency or institution for which an appropriation is made, shall be for a specific sum of money, and no appropriation shall allocate to any object, the proceeds of any particular tax or fund or a part or percentage thereof."
Under this provision of the Constitution no appropriation can allocate to any object the proce:eds of any particular tax or fund. The Act providing for the issuance of warrants against the rentals of the Western & Atlantic Railroad for the years of 1950 to 1969 seeks to allocate such rentals to the payment of a debt created by an agency of the State. I think that such allocation violates the provisions of the Constitution prohibiting such allocation in an appropriation.
As will be seen from the suggestions here:inbefore made, the question of the right and authority of the Governor to set aside the rentals of the Western and Atlantic Railroad as proposed, and the issuance of warrants against such special fund is in my opinion illegal and unconstitutional.
I would suggest that the right and power of the Governor to set aside this special fund and to draw his warrants therein be first determined in a proper court proceeding under our declaratory judgment statute. Unless the Ports Authority is willing to bring such a proceeding and have the same determined in a declaratory judgment, I am of the opinion that the Governor should refuse to set aside the fund or to draw warrants thereon, and should allow the Authority to proceed to issue and dispose of its bonds under the original Act, the bonds to contain the stipulation that they are to be retired solely from the income of the Authority and shall not be a debt against the State.
SHIPPING AND SEAMEN-State Ports Authority The authority of the Governor under the Act of 1946, pp. 163-165, to set aside Western and Atlantic Railroad rentals and issue warrants thereon payable to the State Ports Authority to be used by the Authority to secure a bond issue may be tested by de:claratory judgment proceedings.*
May 14, 1946 Hon. Ellis Arnall Governor of Georgia
I have your recent letter enclosing a draft of proposed executive minutes and form of. warrant against a special treasury fund arising from the rentals accruing by virtue of the existing lease of the Western and Atlantic Railroad. In your letter you ask that I advise you pertaining thereto.
It is my understanding that the State Ports Authority has passed a resolution reciting therein that you have or may se:t up a special treasury fund, and have or may sign one or more warrants against the funds arising under the Western and Atlantic Railroad lease.
While I do not have access to this resolution, the question of whether you
The Act of 1946, pp. 163-165, was held unconstitutional in an action by the Governor against the State Ports Authority for a declaratory judgment. State Ports Authority v. Arnall, Governor et a!., 201 Ga. 713, decided January 7, 1947.

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have or have not so acted is immaterial, since under the statute creating the Ports Authority prov:ision is made for any party desiring to object to the issuance of State Ports Authority revenue bonds to file proceedings in the Fulton Superior Court protesting same.
I understand that such proceedings will be filed to test the legality of your action as to setting up this special treasury fund and drawing your warrant or warrants against the same if you have or should so act.
Btcause the development of the ports of our state is of such great import, and since authority for providing revenue therefor is to be tested, and finally adjudicated by the Supreme Court, I find no reason for me to go into a lengthy discussion on the question of the legality or illegality of any proposed action.
It follows that you could sign one or more warrants against the Western and Atlantic rental funds as a special fund as provided under Act No. 628, for the purpose of definitely creating a set of facts which may be presented to the Courts in the test case to be filed, and on which the Supreme Court could determine once and for all the various legal questions involved. If the Supreme Court should hold that the drawing of such warrant or warrants and the setting aside of such spE;cial fund is illegal, no injury would enure to the State. If the Court should hold otherwise, it would be authority for you and/ or your successor to issue warrants and to set aside funds adequate to cover the entire receipts from the Western and Atlantic Railroad rentals accruing from 1950 to 1965.
I approve the draft of the minutes and the warrants as to form, provided they are amended to cover only the funds proposed to be set aside for only one month if only one month is to be ustd in the proposed test case.
If this information is not adequate in the premises, may I suggest that the legality of the questions involved be tested under the declaratory judgment law. As stated to you before, I am still of the opinion that this procedure is adequate to have thtse questions properly adjudicated.
I hand you herewith a memorandum dealing with this law in support of my view that the matter may be adjudicated in this manner.
May 14, 1946
To: Hon. Ellis Arnall, Governor"' From: Eugene Cook, Attorney General
Memorandum on question of procedure by which it could be legally dttermined whether or not the Governor is authorized, under Act No. 628 and the Constitution of this State, to set aside the Western and Atlantic rentals and to issue warrants thereon payable to the State Ports Authority to be used by the Authority in the sale of bonds to be issued by the Authority.
I am of the opinion that the question can be definitely decided by the Courts of the State under the Declaratory Judgment Act. (Ga. L. 1945, pp. 137-139). It is stated in 16 Am. Jur., Section 60, page 330, as follows:
"In proper cases declaratory judgment proceedings may be brought by municipalities and various public officers and authorities. It has been said that public officers are entitled to have their legal duties judicially determined by a proceeding for a declaratory judgment for in this way only can the disastrous results of well-intentioned but illegal acts be avoided with certainty."
In Wingate. v. Flynn, 139 Misc. 779;. 249 N. Y. S. 351, it was held that
*Memorandum furnished with opinion of same date to the Governor, page 642.

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public officers are entitled to have their legal duties judicially determined by a proceeding for declaratory judgment; that in this way only can the disastrous results of well-intentioned, but illegal acts be avoided with certainty.
Under the above stated rules I am of the opinion that the Governor jointly with the Comptroller General and the Treasurer of the State under proper pleadings could secure a declaratory judgment defining their rights and powers under Act No. 628 and the Constitution of 1945 relative to the handling of the Western and Atlantic rental fund of the State of Georgia.
It is my information that the State Ports Authority is proceeding, at this time, to issue bonds under the, Act creating the Authority, that the Authority has already or is about to give public notice to the taxpayers that they will seek the validation of bonds in the sum of fifteen million dollars. I also understand that the Authority has passed, or is about to pass, a resolution setting forth that the bonds to be issued are to be secured by the special fund create,d from the Western and Atlantic rentals and warrants issued thereon. Any taxpaying citizen of the State would have the right, in a declaratory proceeding, to question the power of the Authority to issue bonds which seek to pledge the, credit of the State to their payment in the future, and in such a proceeding to attack the constitutionality of both Acts No. 628 and No. 615.
In such a proceeding the parties at interest would be the State Ports Authority, the Governor, the Comptroller General and the State Treasurer. While it is true that the Governor cannot be enjoined and is not subject to writ of mandamus, it is true that both the Comptroller General and the State Treasurer may be e,njoined from participating in the creation of a debt which the taxpayer deems to be illegal and unconstitutional, and are subject to writ of mandamus to force them to perform their official duties.
Under Section 6 of the Declaratory Judgment Act when any statute of the State, or any order or regulation of an administrative body of the State, or any franchise created by the State is alleged to be unconstitutional, the Attorne,y General of the State should be served with a copy of the proceedings and would be entitled to be heard in the matter.
The legality and constitutionality of issuing the warrants and setting aside the special fund from the Western and Atlantic rentals could also be contested in the Courts where the Governor has issued the warrants and ordered the fund set aside where the Comptroller General refusE:s to countersign the warrants, and the Treasurer refuses to set aside the rentals into a special fund. In either case the State Ports Authority would have the right to bring against the Comptroller General or the Treasurer, or both, a mandamus petition seeking a writ to force such public officials to perform the duty of counte,rsigning the warrants and setting aside the special fund. In such a proceeding the officers could defend by setting up the illegality of the different acts and the constitutional provisions prohibiting the creation of a debt and regulating appropriation control.

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SHIPPING AND SEAMEN-State Ports Authority The General Assembly may not set aside a continuing appropriation for 31 years for the purpose of developing ports under the jurisdiction of the StatE: Ports Authority.
February 25, 1947 Brigadier General R. F. Fowler Executive Director, State Ports Authority
Your letter of January 31st received. You request that I advise whether or not it would be possible to levy some special tax to be set aside to meet a continuing appropriation of $350,000 per year for 31 years for the purposE:' of developing ports under the jurisdiction of the State Ports Authority.
Such a procedure as outlined in your letter would, in my opinion, violate the Constitution of 1945. The Constitution prohibits the allocation of any tax or fund for any specific purpose. See Paragraph 4, Section 9, Article 7 of the Constitution.
Under our form of govE:rnment as prescribed by the Constitution it would be impossible for one General Assembly to make a continuing appropriation so as to invade the province of future General Assemblies. To make a continuing appropriation of a certain sum for a period of 31 years would also violate the Constitution in that, if such appropriation was legal, and had any binding effect upon the State, same would amount to the creation of a debt in violation of the provisions of the Constitution.
The right to create a debt for the purpose of developing the port facilities under the control of thE: State Ports Authority was definitely decided against the State Ports Authority by the Supreme Court in a recent opinion rendered in the case of State Ports Authority v. Arnall, Governor, 201 Ga. 713.
SOCIAL WELFARE-Old Age Assistance The fact that an applicant, otherwise qualified, is employed by the State, does not disqualify him from receiving old age assistance sufficient, when added to his othE:r income, to provide a reasonable subsistence. compatible with decency and health.
January 23, 1946 Hon. Ellis Arnall Governor of Georgia
Your letter of January 11, in which you ask my official oprmon as to whether or not it is legal for a person to receive old age assistance and at the same time be employed by the State of Georgia, or any business concern, is acknowledged.
It is my official opinion that it is legal for a person to receivE:' old age assistance and at the same time be employed by the State of Georgia, or by any private business concern; provided, such old age assistance is received in accordance with the Georgia statutE:s applicable thereto, which are hereinafter quoted.
The Department of Social Welfare has ruled that assistance to those who are 65 years of age or older is grantE:d on the basis of need. There is nothing in the Act that would disqualify one who would be otherwise entitled to assistance because of his being employed by the State of Georgia, or by any private business concern.

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The specific provisions of Georgia law applicable to the question presented in your letter are as follows:
Code Section 99-603. "Assistance shall be granted under this Chapter to any person who:
(a) is 65 years of age or older; (b) has not sufficient income or other resoul"=es to provide a reasonable subsistence compatible with decency or health: Code Section 99-605: Section B. "The Department of Social Welfare is authorized to make such rules and regulations and to take such action as may be necessary or desirable for carrying out the provisions of this Chapter, and all rules and regulations made by the State Department shall be binding on the counties and shall be complied with by the respective county departments." Code Section 99-604: "The amount of assistance which any person shall receive shall be determined by the county department, with due regard to the resources and necessary expenditures of the individual and the comdition existing in each case, and in accordance with the rules and regulations made by the State Department, and shall be sufficient, when added to all other income and support of the recipient, to provide such person with a reasonable subsistence compatible with decency and health: provided, however, that such amount of subsistence shall in no event exceed the sum of $30.00 per month to each recipient.'' (Emphasis supplied). The determining factor is not whether the person is employed, or by whom employed, but is whether the person is actually in need of assistance. The Department of Social Welfare has determined that it will give assistance, when needed, to those persons 65 years of age or older, up to 75% of the need, and not to exceed $30.00 per month. If an applicant for old age assistance be otherwise qualified, the fact that such applicant is employed by the State would not disqualify him from receiving old age assistance to provide him with a reasonable subsistence compatible with decency and health.
SOCIAL WELFARE-State Board (1) The amendment to the Constitution creating the State Board of Public Welfare is self-executing and supersedes the State Board of Social Security. (2) Appointments by the Governor to the State Board of Public Welfare are not subJect to confirmation by the Senate.
April 3, 1946 Hon. Ellis Arnall Governor of Georgia
I am in receipt of a copy of your letter to Mrs. J. C. Blalock, President of the Georgia League of Women Voters, dated March 27, in which you advise her that you are requesting me to confirm an opinion given you by Assistant Attorney General R. U. Hanl.en in which he held:
"That if the amendment to the Constitution setting up a constitutional State Board of Public Welfare is ratified, no enabling act will be necessary to put its provisions into effect; that the Governor at the time of the ratifica-

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tion of the amendment (November 1946) could appoint the Welfare Board immediately; and that the Senate would have no right to confirm or approve the appointments".
I am adopting the conclusions reached by Assistant Attorney General Harden in the subject matter as an official opinion from me.
The proposed constitutional amendment to create a State Board of Public Welfare is self-executing. The first s~::ntence is as follows: "There is hereby created a State Board of Public Welfare consisting of twelve members who shall be appointed by the Governor." The amendment further provides the terms of office of the members and the duties of the board. Considered in the light of official opinions from the Attorney General to the Governor, dated August 9, 1945, and October 24, 1945, it is clear that this amendment, if adopted, will not require legislative action to put its terms into effect.
It also seems clear to me that it is the intent that this new Board shall take the place of the State Board of Social Security established by Ga. L. 1943, page 202. The constitutional amendment conflicts with the' act estab~ lishing thE:" Social Security Board, by providing for 12 members instead of 10, and by providing for staggered terms instead of terms running concurrently with that of the Governor. In addition to these conflicts, the amendment shows its intent to replace the Social Security Board by providing: "The State Board of Public Welfare shall have the authority and responsibility of the State Board of Social Security as now exists under the laws of this State, or which may be hereafter enacted and prescribed by law."
The only debatable point on which I stated my view concerns the right of the Governor to make the appointments without the necessity of confirmation by the Senate. Section 40-314 of the Annotated Code (Ga. L. 1943, p. 208) provides: "All appointments made by the Governor to boards, commissions and bureaus created and established by the laws of this State, shall be made subj~::ct to confirmation by the State Senate." It is my view that this section only applies to appointments to boards, commissions and bureaus created by the General Assembly. "Where the constitution has provided the method of filling offices, the legislature may not provide for filling them in any other manner than that directed by the constitution." 46 C. J. 950, Sec. 63.
"Where an office is cr~::ated by statute, it is wholly within the control of the legislature creating it. But, when an office is created by the constitution, it cannot be enlarged or lessened in scope by any statute, or be filled in any other manner than the manner directed by the Constitution." People ex rei. Ahern v. Bollam, 182 Ill. 528, 54 N.E. 1032. It is my view that to make the Governor's appointments subject to confirmation by the Senate would be to l~::ssen the power given him by the constitutional amendment and provide a different manner for the naming of the Board.
The new Constitution provides for a number of boards to be appointed by the Governor, but in each instance it is specifically provided that the appointments should be subject to confirmation by the Senate. The provision as to confirmation was apparently designedly left out of this amendment to avoid the necessity for such confirmation.

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SOCIAL WELFARE-State Board; County Board A person may not, at the same time, hold office as a member of a county board of education and as a member of the State or county welfare board.
April 29, 1946 Dr. M. D. Collins Superintendent of Schools
Your letter of April 19th received. Along with your letter you forwarded copy of a letter from Mrs. H. T. Singleton, Superintendent Calhoun County Schools, and request that I advise whether or not a person could serve as a member of the Welfare Board and also as a member of the County Board of Education at the same time.
I could not determine from your letter or Mrs. Singleton's letter whether you were referring to the County Board of Welfare or the State Welfare Board. I am presuming, however, that Mrs. Singleton was referring to County Welfare Board.
Section 99-503, Cumulative Pocket Part of the Annotated Code, provides in part as follows:
"The county board of public welfare shall consist of five members appointed by the county commissioner or board of commissioners, or the constituted fiscal or financial agent of each respective county with the approval of the State Department: Provided, that no elected officer of the State or any subdivision shall be eligible for such appointment."
Governor Arnall, while serving as Attorney General, construed the above quoted provision as follows:
"While it will be observed that this statute uses the word 'elected', I am of the opinion that it is used in a broad sense and would include an election by any body such as a grand jury, as well as election by a popular vote of the qualified voters of a political subdivision of the State. I feel that it is used in this statute as the antonym 'appointed'. If such is th~: proper meaning to be applied to this word, then it necessarily follows that a member of the county board of education who is selected or elected by the grand jury of a county is ineligible to hold the office of a member of the county board of public welfare. See Code Section 32-903."
Opinions of the Attorney General, 1939-41, page 660. I agree with the construction placed on this provision of the Act providing for the county board of public welfare. Attention is also called to the provisions of Code Section 89-103 which provides in part as follows: "No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature ..."
Under this provision of the statute a person could not hold the office as a member of the county board of public welfare and as a member of the county board of education.
Should Mrs. Singleton be referring to a State Board of Welfare, rather than to a county board of welfare, the following provision of law would be applicable. Section 89-101 of the Code provides in part as follows:
"The following persons are held and deemed ineligible to hold any civil office, and the existence of any of the following states of facts shall be a sufficient reason for vacating any office held by such person, but the acts of

649
such person, while holding a commission, shall be valid as the acts of an officer de facto, viz:
4. Persons holding any office of profit or trust under the Government of the United States (other than that of postmaster and officers of the Reserve Corps of the: United States Army, Navy or Marine Corps), or of either of the several States, or of any foreign State."
Section 99-506 of the Cumulative Pocket Part of the Annotated Code provides for the appointment of members of the State Board of Public W elfare. The members of the Board are appointed by the Governor and confirmed by the Senate for a term of four years. This is a State office and a person holding such an office is ine:ligible to hold any civil office, and the office of member of the county board of education is, in my opinion, both a civil office and a county office.
I am, therefore, of the opinion that a person would be ineligible to serve as a member of either the State Welfare Board or the County Welfare Board and as a member of the County Board of Education.
SOCIAL WELFARE-State Department The State Department of Public Welfare: may accept and disburse Federal funds and match the same under such formulas as may be provided by the Federal Government and adopted by the State rules and regulations to the maximum amount provided by Federal statute. August 13, 1946
Hon. A. J. Hartley, Director Department of Public Welfare
Your letter of August lOth received. You refer to Act No. 237 approved March 6, 1945, and to Section 99-604 of the Cumulative Pocket Part of the Annotated Code and request that I advise whether or not under Act No. 237 the State Department of Public Welfare would be authorized to match Federal funds in amount to exceed thirty dollars but not to exceed a maximum of forty-five dollars as old age: assistance.
Section 1 of Act No. 237 provides in substance that notwithstanding any provisions of the Old Age Assistance Act of 1937, the State Department of Public Welfare may accept and disburse Federal funds which exceed fifty per cent. of Federal matched funds. It authorizes the receipt and disbursement of such funds under any formulae of variable grants or other formulae for the granting of Federal grants-in-aid. Section 3 of the Act empowers the State Department of Public Welfare in order to comply with Federal requirements to promulgate necessary rules and regulations and do all things necessary and proper to secure the maximum amount of such Fede:ral grants.
It is my opinion that the language used in Section 3 of the Act construed with Section 1 authorizes the State Department of Public Welfare to accept and disburse Federal funds made available by the Act of Congress and to match the same under such formulaes as may be provided by the Federal Gove:rnment and adopted by State rules and regulations to the maximum amount provided by Federal statute.

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SOCIAL WELFARE-State Department The State Department of Public welfare is the proper State agency to administer the mental hygiene program.
September 23, 1948 Hon. Ellis Arnall Governor of Georgia
In compliance with your recent request relating to a question propounded by Dr. John B. Rozier, Surgeon of the United States Public Health Service, as to what State agency is authorize:d by law to operate and administer the mental hygiene program for Georgia, I am pleased to refer you to the following provision of the 1937 Act creating the Department of Public Welfare.
Section 6 of this Act, iri referring to the activities of the State Department of Public Welfare, provides in part as follows:
. "The State Department shall: " (4) Administer or supervise all mental hygiene work, including the opera-
tion of all State institutions for the: care of mentally ill or feeble-minded persons, and of non-institutional care for this group." (Ga. L. 1937, p. 360).
In keeping with your letter of September 7, 1946 to Dr. John B. Rozier, Dr. T. F. Abercrombie and I have discussed this matter and we have both agreed that the above statute clearly places the administration of me:ntal hygiene work with the State Department of Public Welfare.
SOCIAL WELFARE-State Department The State Department of Public Welfare may delegate to the State Department of Public Health the administration of the mental hygiene program.
June 5, 1947 Hon. L. C. Groves, Director Department of Public Welfare
Your letter of May 22nd received. You state that under an opmwn re:ndered by this Department based upon Code Section 99-413, Cumulative Pocket Part of the Annotated Code, the State Department of Public Welfare was held to be the authority for the State to handle the mental hygiene program under an act rece:ntly passed by the Congress of the United States. You request that I advise whether or not the State Department of Welfare has authority to delegate the administration of mental hygiene to be administered under the Act of Congress to the State Health Department.
Section 99-424, Cumulative Pocket Part of the Annotated Code:, provides as follows:
"The State Department shall be empowered with authority to delegate in whole or in part the operation of any institution or other activity of this Department to any other appropriate: department or agency of the State, county, or municipal government and to contract with and cooperate with such departments or subdivisions in any manner proper for carrying out the purpose of this law."
I am of the opinion that under this Section of the Code the State Welfare Department can delegate to the State Health Department the activity of administering the me:ntal hygiene program as proposed by the Act of Congress.

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STATE DEPOSITORIES (Unofficial) (1) A county tax collector may deposit State funds only in a State depository selected by the Governor, or pay the same directly into the State Treasury. (2) A county depository may be selected under the terms of a local act. June 2, 1947
Hon. L. E. Sweat Blackshear, Georgia
This will acknowledge your letter of May 28th asking advice as to what authority or prerogative you have with reference to choosing the depository where you shall deposit your collections as Tax Collector for State, County and Board of Education.
Section 100-112 of the 1933 Annotated Code provides: "The Governor shall, at the time of appointing the State depositories, make a list of the counties whose tax collectors shall be instructed to pay State funds into each depository, and said tax collectors shall pay 'into no other deposi:ory than the one named by the Gove.rnor; and the Governor shall also make known the apportionment of counties by a proclamation duly published in the city where such depository is located, giving the name of the depository and the names of the counties whose tax collectors shall be instructed to pay into said depository all moneys collected. by them for and on account of State taxes." (Emphasis supplied). Section 100-113 of the 1933 Annotated Code provides: "Nothing contained in this Chapter shall be construed to prevent tax collectors from paying State funds directly into the State treasury. The State Treasurer shall not deposit such funds in any bank or other depository except those established under this Chapter, and he shall, by check or other proper means, draw from said depositories such amounts only, and at such times only, as the necessities of his department may require." A local Act applicable to Pierce County (Ga. L. 1915, p. 328) provides: "The county commissioners of the County of Pierce are hereby authorized and directed to select any bank in the County of Pierce to do and to perform all the duties and functions of the office of County Treasurer of said county, and said bank thus selected shall do all of said work without any compensation or pay, either directly or indirectly." A local Act applicable to Pierce County (Ga. L. 1933, p. 646, 647) which is an amendment to the 1915 Act above referred to provides: "That all moneys collected for the county, including all tax moneys, shall be deposited by the county officers of Pierce Courr:y in said county depository as required by law." (Emphasis supplied). I trust the above information will be of help to you.

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TORTS-Vicious Animals (Unofficial) (1) An owner of an animal known to be VICious who negligently allows it to run at large is liable in damages to a person injured by it. (2) Where a person is injured by the attack of an animal vicious by nature, negligence of the owner is presumed.
April 25, 1947 Hon. Robert R. Taylor County Solicitor Miami 32, Florida
Your letter of April 19th received. You request that I advise whether or not the Supreme Court of the State has construed Section 105-110 of the Code of 1933.
In a former letter you stated to mE: that you had prosecuted a man criminally under a provision of the Florida law. In answer to your letter I stated that we did not have any statute making it a crime against an owner of a vicious animal where the animal killed a human being. Section 105-110 of our Code was quoted for you. -Section 105-110 relates to a civil action for damages for injury caused by a vicious or dangerous animal kept by its owner where he with knowledgE: of the viciousness of the animal negligently allows the same to go at liberty.
If injury occurs to another by reason of the exercise of the vicious propevsity of an animal, the owner will be held liable therefor, if he knew of the vicious character and negligently allowE:d such an animal to run at large. Friedman v. Goodman, 124 Ga. 532; Harvey v. Buchanan, 121 Ga. 384; Logan v. Hope, 139 Ga. 589.
Where a person is injured by an attack of an animal which by nature is vicious, the negligence of the owner is presumed because the law recognizes that safety lies only in keeping such animals perfectly secure. For a case dealing with such an animal and holding that the petition set forth a cause of action, sE:e Candler v. Smith, 50 Ga. App. 667, where petitioner sought to recover damages because of fright and injuries resulting from the escape of a baboon from the defendant's private zoological collection.
TRADE NAMES-Corporations (Unofficial) A corporation may do business in Georgia under a trade name.
March 12, 1947 Messrs. Davis & Gilbert Attorneys at Law New York 17, N. Y.
This will acknowledge your letter of March 4th, in which you request an official opinion in regard to corporations doing business in Georgia under a trade name.
Section 106-301, CodE: of Georgia, Annotated, 1933, Cumulative Pocket Part, reads as follows, to-wit:
"106-301. Business conducted under trade name, partnership name, etc., to be registered; exceptions.-Every person, firm or partnership, carrying on in this State any trade or business under any trade name or partnership name or other names, which does not disclose the individual name, shall within 30

653
days from the approval of this Chapter or thereafter commencing to d,o business, file in the office of the clerk of the superior court of the county in which said business is chidly carried on, or in case of a domestic corporation, using any name other than its corporate name, in the county of its legal domicile, a registration statement, verified by affidavit, setting forth the name or names and address of the person, persons, firm, partnership owning and carrying on said trade or the trade, partnership, or other name used; and shall, upon any change of ownership, likewise file a new and amended statement of registration; that notice of such application giving the names and addresses of each person, firm, partnership, to engage in business of such trade name or partnership name shall be published in the paper in which the sheriffs advertisements are printed once a week for two weeks: Provided, that no person, firm, partnership, already registered shall be required to register except in the event of a change of ownership: Provided, further, that this Chapter shall not apply to persons practicing any profession under a partnership name."
Section 106-9906 of the above mentioned Code reads as follows: "106-9906. Penalty for failure to register trade name.-Any person, firm, partnership, or corporation carrying on any trade, or business subject to registration under section 106-301, without filing such registration as required by said section shall be guilty of a misdemeanor, and on conviction shall be punished as provided by section 27-2506, but shall suffer no other or further penalty or forfeiture on account of any such failure to register, except costs as hereinafter provided."
I beg to advise that on March 16th, 1937, the Supreme Court of Georgia in the case of Atlanta Paper Company v. Jacksonville Paper Company, 184 Ga. 205, upheld and approved a charge of the Court in the trial of the case, which charge was in part as follows:
"I charge you, gentlemen of the jury, that a corporation has the right to adopt a name other than its corporate name as a trade-name under which to do business, provided the name so adopted does not so closely resemble the name of another person or corporation engaged in like business as to cause persons trading with one such corporation to believe the goods of one to be the goods of the other."
Mr. Justice Atkinson in rendering this decision very comprehensively discussed the whole question involved.
TRUSTS-Charitable (Unofficial) Trustees of charitable trusts are not required to make inventories on returns to the Ordinary but are subject to equitable supervision.
September 10, 1946 Hon. Ernest R. D'Amours Attorney General Concord, New Hampshire
This will acknowledge your letter of September 5, in which you inquire whether the State of Georgia has a statute which requires trustees of charitable trusts to make periodical returns or reports to any office or State agency.
Under Georgia Law, trustees of charitable trusts are not required to

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make inventories or returns to the ordinary as is required of trustees of private trusts.
"Trustees whose duty it is to manage religious, charitable, educational, or other public trusts are not required to make returns to the ordinary".
City of Waycross v. Waycross Savings & Trust Co., 146 Ga. 68; Ford v. Thomas, 111 Ga. 493 (2).
However, the acts of trustees of charitable trusts, like those of other trustees, are subject to equitable supervision. Sections 108-201, 108-202, and 108-204 of the Code of Georgia of 1933, Annotated, provide as follows:
108-201. Charitable bequest; enforcement in equity.-Equity has jurisdiction to carry into effect the charitable bequests of a testator or founder, or donor, where the same are definite and specific in their objects, and capable of being executed.
108-202. Cy pres.-When a valid charitable bequest is incapable for some reason of execution in the exact manner provided for by the testator, donor, or founder, a court of equity will carry it into effect in such a way as will as . nearly as possible affectuate his intention.
108-204. Rights of supervision by court of equity.-A charity once inaugurated is always subject to the supervision and direction of a court of equity, to render effectual its purpose and object.

WORKMEN'S COMPENSATION-Counties

A county electing to come under the Workmen's Compensation Act may

not insure the employees of the county road department to the exclusion

of the other county employees.

Ron. Pat J. Riordan, Chairman State Board of Workmen's Compensation

February 4, 1946

Your letter of January 9, in which you request an opinion as to whether

or not a county may insure the employees of the county road department, to

the exclusion of the other county employees, under the Workmen's Compen-

sation Act of Georgia, is acknowledged. It has long been held that an employer, under the Workmen's Compensa-

tion Act, cannot insure a portion of his employees, to the exclusion of other employees. See Small v. Public Indemnity Co., 46 Ga. App. 308; General Accident etc. Assurance Corp., v. John P. King Manufacturing Co., 60 Ga. App. 281;

Taylor v. Lumbermens Mutual Casualty Co., 43 Ga. App. 292. Code Section 114'-101 defines an employer as any individual, firm, associa-
tion or corporation engaged in any business operated for gain or profit, in-

cluding the State of Georgia and all Departments thereof, any municipal corporation within the State, and any political division thereof. Under this same

statute, an employee is defined as every person in the service of another, under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation, or profession of the employer and, except as hereinafter provided, minors are

included, if not working in violation of any child labor law or other similar statute.
It was held in the case of Kelley v. County of Newton, 198 Ga. 483, that the amended Code Section 114-101, as it applied to counties, violates Article 7,

655
Section 2, Paragraph 2, of the Constitution of Georgia, and further held that the word "employer" as contained in the Workmen's Compensation Law had no effeoct over the status of counties in this State.
But where a county and its employees elected to accept the terms of the Workmen's Compensation Act, such election shall continue until recalled by joint action of the employer and employees, and shall become effective only after notice is given to the Department of Industrial Relations. Seoe Code Section 114-207. It is therefore legal for a county to elect coverage under the terms of the Act.
In the particular case, the question for consideration is: "Can an employer who has elected coverage under the terms of the workmen's Compensation Act limit its liability to less than that which the Act contemplateod for employers who were involuntarily under the Act?"
The second question is: "Can an insurer issuing a policy to an eml'lloyer who has elected to come under the terms of the Act limit its liability to include only the employees of a certain department of the employtr's business?"
The third question is: "Does the Act distinguish between an individual, firm or corporation, and a county or agency of government, with respect to ooverage under the Act?"
It is my opinion that the Georgia Workmen's Compensation Act does not permit an employer to beocome a subscriber to an insurance policy as to one part of its employees and to remain a non-subscriber as to the remainder of its employees. See in this connection: The Cox case, 225 Mass. 200; 45 A. L. R. (Annotations) pp. 1333 and 1334.
Code Section 114-101 of the Georgia Workmen's Compensation Act defines employees to be "evtry person in the service of another, under any contract or hire of apprenticeship, written or implied." Whtn one seeks voluntary coverage under the Georgia Workmen's Compensation Act, it then becomes the duty of the Board of Workmen's Compensation to see to it that such employer insures the, risk in accordance with the terms of the Georgia Act. If an employer takes out insurance covering employees who are not otherwise within the Workmen's Compensation Act, or if an employer who was not under the terms of the Act in the first instance, voluntarily seeks coverage with an insurance company insuring risks under the Workmen's Compensation Act, such action on the part of an employer would be an election to accept the tc,rms of the Act itself.
The Georgia Workmen's Compem;ation Acts, by their terms, effectively prohibit any attempt by contract to impose limitations upon their operation. The Workmen's Compensation statute may not be nullified or abrogated nor may the employee's right to compensation be waived or released. Even though no tXpress provision is contained in the Georgia statute, it would seem that any attempt to nullify or limit the operation of the law must be held invalid as being against public policy.
Once an employer elects to come within the terms of the Georgia Workmen's Compensation Act, he thereby obligates himself to the same extent as if he had been under the provisions of the Workmen's Compensation Act involuntarily, as a matter of law. He thereby becomes liablt for all of his employees except those particularly excluded by the statute itself. It therefore must be ruled that a county seeking to insure a portion of its employees would make itself liable for all of its employees.

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The next question is whethe:r the insurer's liability under the policy, which in effect only insures employees working in a particular department of the business, is limited to those employees or whether the liability will be extended to include all of the persons in the service of the employer under any contract of hire or appre:nticeship, written or implied. I think that the liability of the insurer would not be limited to those specifically named in the policy, but would include all of the persons working for the employer. See the case of Small v. Public Indemnity Co., 46 Ga. App. 308; Hartford Accident & Indemnity Co. v. Hall, Administrator, 36 Ga. App. 574.
In the case of Bartram v. City of Atlanta, 71 Ga. App. 313, it was held: "The employers of this State and employees thereof, are under the provision of the Workmen's Compensation Act involuntarily." It might well be added that counties and their employees are not under the provisions of the Workmen's Compe:nsation Act involuntarily as a matter of law, but that a county may elect coverage and subject itself to the provisions of the Workmen's Compensation Act. See the case of Maryland Casualty Co. v. Wells, 35 Ga. App. 759, wherein tt was held: "Even though a city policeman is not an employee within the terms of the Georgia Workmen's Compensation Act, yet, where an insurance company insures a city unde:r the Workman's Compensation Act and the policy expressly covers policemen employed by the city, the policeman, insofar as the insurance company is concerned, is an employee of the city and entitled to compensation under the policy." Officials of a county or of a city are contradistinguished from employees of a county or a city. See the case of United States Fidelity Co. v. Watts, 35 Ga. App. 447; Marlow v. Savannah, 28 Ga. App. 368. In order for the Workme:n's Compensation Act of Georgia to be properly administered and to carry out the full spirit of the law, it is necessary to require an employer to cover all employees and to deny an insurance carrier the right to limit its coverage to only a part of the employees. Such ruling is in accord with sound legal principles and will defeat any attempt to nullify or limit the operation of the law. The fact that a county is not as a matter of law unde:r the provisions of the Workmen's Compensation Act does not destroy the logic of the rule. The county could elect to remain outside of the provisions of the Workmen's Compensation Law, and there is no agency of this State that could compel them to come under the provisions of its terms. But once the county elects to put any one of its employees under the provisions of the Act, then it has by such action brought itself under the provisions of the Warkmen's Compe:nsation Act; and it would be liable for the risks involved in working all of its employees. An insurance company attempting to cover only a portion of the county's employees would likewise have its liability extended to include all of the employees.
WORKMEN'S COMPENSATION-Employees An inmate of the Georgia State Prison is not an employe:e of the State.
February 1, 1946 Hon. F. R. Hammack, Director State Department of Corrections
Your letter of Dece:mber 19th received. Your letter states facts showing

657
that an inmate of the Georgia State Prison, while engaged in work assigned him received an injury to one eye, which injury was so serious that the eye had to be removed. You request that I advise whether or not the prisoner, under such circumstances, could recover under the Workmen's Compensation Law.
The General Assembly in 1943 (Ga. L. 1943, pp. 401, 402) added the State of Georgia and all of its Departments to the definition of "employer" as used under the Workmen's Compensation Act and defined by Section 114101 of the Code of 1933.
The word "employee" is defined by the Workmen's Compensation Act and by Section 114-101, Cumulative Pocht Part of the Code in the following language:
"'Employee' shall include every person in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or
profession of the employer * * *."
The definition of both "employer" and "employee" under the law prior to the 1943 amendment, with the exception that the State of Georgia and all Departments thereof were added to the definition of employer, is the same as now appears under the Act as amended in 1943.
The Act creating the State Department of Corrections passed at the 1943 Extra Session (which Act has since been repealed) provided that the Department of Corrections should install a system whereby honor prisoners may be paid an earning not to E:xceed ten cents per day. This provision was not mandatory and no wages or salaries have ever been paid to prisoners serving sentences imposed by the courts. The Workmen's Compensation Act implies that there must be a voluntary relation between the parties as employer and employee, and the Act does not include prisoners who arE: compelled to perform manual labor for punishment of their offenses. In Lawson v. Travelers Insurance Company, 37 Ga. App. 85, the court ruled as follows:
"A convict injured while serving a sentence in a county chain-gang is not an employee of the county and is not entitled to compensation under the workmen's compensation act."
Lawson was a convict serving a misdemeanor sentence in the chain-gang of MuscogE:e County and at the time of his injury was engaged il} doing work upon the public roads of the county under the direction of the warden. The case was heard by Hon. T. E. Whitaker, one of the members of the Industrial Commission, who held that Lawson, while serving his sentence in Muscogee County chain-gang, was not an employee of Muscogee County and was, therefore, not entitled to compensation under the provisions of the Act. The case was appealed to the Superior Court of Muscogee County where it was likewise held that Lawson was not an employee of the county at the time of his injury. The Court of Appeals sustained the judgment of the Superior Court.
The Supreme Judicial Court of Massachusetts cited the Lawson case as authority for holding that a prisoner while serving in a jail was not an employee of a county within compensation act. See Greene's Case, 208 Mass. 506, 182 N. E. 857.
The Supreme Court of Oklahoma in Murray County, et al. v. Hood, et a!., 163 Okla., 167, 21 p. 2d 754 (4), ruled as follows:

658
"County convict performing work for county during term of imprisonment is not 'employee' within Workmen's Compensation Act."
I am of the opinion that the prisoner could not be classified as an employee of the State and that, therefore, he is not E:ntitled to receive benefits under the Workmen's Compensation Act of the State.
WORKMEN'S COMPENSATION-Employers; Employees (1) Laborers and skilled mechanics employed by the State Board of Education as instructors at a state trade and vocational school are within the protection of the Workmen's Compensation Act. (2) Pupils at a state trade and vocational school are not employE:es nor apprentices of the school and the State would not be liable for accidental injury sustained by them.
June 5, 1947 Dr. M. D. Collins State Superintendent of Schools
Your letter of May 26th received. You state that the Board of Education has established and put into operation a State Trade and Vocational School located in Americus, Georgia, and as such employs laborers and skilled mechanics, who work at the school for the purpose of teaching pupils therein. You propound four questions upon which you asked my opinion.
In the first three questions you inquire whether or not the school would be liable in case of accident or accidental death to such employees, and if liable, the nature of the responsibility, and if responsible if an accident or accidental death should occur what would be the action of the State in such a case.
All three questions are considered together. Section 114-101 of the Cumulative Pocket Part of the Annotated Code defines the word ''employer" as follows: " 'Employer' shall include any municipal corporation within the State, and any political division thereof, and any individual, firm, association or corporation engaged in any business operated for gain or profit, except as hereinafter provided, and the receiver or trustee of the same, and the legal representative of a deceased employer, using the service of another for pay. If the employer is insured this term shall include his insurer as far as applicable." You will note from the definition that the word "employer" includes the State of Georgia and all departments thereof. The same Section defines the word "employeE:" as follows: " 'Employee' shall include every person in the service of another under any contract cf hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or profession of the employer and, except as hereinafter provided, minors are included even though working in violation of any child labor law or other similar statute: Provided, that nothing herein contained shall be construed as repealing or altering any such law or statute. Any reference to an employee who has been injured shall, when the employee is dead, include also his legal representatives, dependents and other person to whom compensation may be payable, pursuant to the provisions of this law." In substance, from said Section, "employee" includes every person in

659
the service of another under any contract of hire or apprenticeship. Of course all laborers and skilled mechanics employed by the State would be considered as employees. Should such a person suffer a total incapacity he would be entitled to recover weekly workmen's compensation as provided in Section 114-404 of the Code as amended. Section 114-405 of the Code as amend;d provided for compensation on a basis of partial incapacity: Section 114-406 of the Code, as amended, provides for weekly compensation for injury according to the nature of the inJury and this Section measures the recovery such an employee would be entitled to recover from the State.
Should any on; of such employees suffer an accident or injury, notice thereof should be given to the Workmen's Compensation Board. The procedure thereafter should be according to the Workmen's Compensation Law. I will not at this time undertake to outline the full procedure. Should such an accident or injury occur the office of the Attorney General will be glad to advise the procedure therefor.
In qu;stion four you state that the school in its operation will enroll men, boys and perhaps women as students in the school, and you request that I advise whether or not the school would be responsible in case of accident or accidental death to any such enrolled pupil.
I pointed out above that the word "employee" included every person in the service of another under contract of hire or apprenticeship. I do not find any decision of the State touching upon the question of whether or not a pupil in a State op;rated school would be included in the term "apprentice". The courts of New York in the case of Miller, on behalf of State Insurance Fund v. Garford Laboratories, 16 N. Y. S. 2d 279, 281, 172 Misc. 567, held that students of beauty culture school, who, in order to be entitled to a certificate, rendered services to public for which services patrons paid school, which paid nothing to students, who in some instances receive tips were employees in respect to the school's liability for compensation insurance.
The word "apprentice" involv;S the relationship similar to that of master and servant. As I understand your letter pupils who enroll in the State school are considered mere students. There is no contract or relationship of master and servant between the school and the pupil. I further understand that the State school does not deal with the public for the sal; and distribution of any products manufactured by the school. The school is operated for the sole purpose of teaching its enrolled pupils in the different trades. I do not believe that under such circumstances the State would be liable to the pupil for any accidental injury which might r;sult by the reason of handling dangerous machinery. Each case involving apprenticeship would necessarily turn upon the peculiar circumstances surrounding the case.
WORKMEN'S COMPENSATION-State Board Duties of the Chairman of the State Board of Workmen's Compensation defined. April 2, 1946
Hon. Ellis Arnall Governor of Georgia
This will acknowledge your request of March 16, for my official opinion with rderence to the duties, powers, authorities and responsibilities of the office of Chairman of the State Board of Workmen's Compensation.

660
I shall not in this opm10n trace the various changes made by the Legislature in the laws as they apply to the present State Board of Workmen's Compensation because after examining same carefully, I am of the definite opinion that they throw no light on the questions asked.
I will first set forth the provisions of the Georgia statutes which define the duties of the Board and of the Chairman.
The Act of 1943, (Ga. L. 1943 p. 168, Sec. 3) provides in part as follows:
"There is hereby created and established within the Department of Labor a Board to be known as the State Board of Workmen's Compensation, composed of three (3) members who shall be appointed by the Governor for a term of four (4) years, by and with the advice and consent of the Senate ..."
In Section 54-114 of the Georgia Code of 1933, annotated, (Ga. L. 1943, p. 169, Section 4) it is provided:
"The State Board of Workmen's Compensation is hereby empowered and authorized to and shall adopt proper rules of procedure to govern the exercise of its functions and of hearings before the Board or of any of the members". (Emphasis supplied).
In Code Section 54-113, (Ga. L. 1937, 230), it is provided: "The State Board of Workmen's Compensation shall exercise all powers and perform all duties relating to the enforcement of the Workmen's CompE::nsation law . . ." In Code Section 114-703, (Ga. L. 1920, p. 195; Ga. L. 1925, p. 282; Ga. L. 1931, pp. 7-43), it is provided in part as follows: "Any two directors shall constitute a quorum for the transaction of any business or the rendition of any decision herein provided to be made by all of the directors". After carefully examining the statutes, I have been able to find only two provisions of law which define the duties of the Chairman. They are as follows:
The Act of 1943, (Ga. L. 1943, p. 163 Sec. 3) provides in part: "The Chairman shall be a person who on account of his previous employment, affiliation, or exptrience shall be classified as capable of representing the public at large".
Section 114-701 of the Georgia Code of 1933 provides in part as follows: "The Commissioner of Commerce and Labor, as Chairman of the Department of Industrial Relations (now State Board of Workmen's Compensation and according to Georgia Acts 1943, Section 5, at page 170, the term of Commissioner of Commerce and Labor can be stricken and the term Chairman of the State Board of Workmen's Compensation can bE:: inserted in lieu thereof) may appoint and fix the salary of the Secretary-Treasurer ... (c) The Directors and their assistants shall be entitled to receive their actual necessary expenses while traveling on the business of the Department, but the expenses shall be sworn to by such pHson and shall be approved by the Chairman before payment is made".
Permit me to point out in this connection that by the terms of the statutes dealing with the State Board of Workmen's Compensation, it is specifically provided that the Chairman shall exercise only two duties that are not common to the other two members of the Board. They are as follows:
a. May appoint and fix the salary of the Secretary-Treasurer.

G6l

b. Shall approve before payment the expenses of the Directors and their assistants which are incurred by them while traveling on business of the De-

partment.

The desigTjation of one of the members of the Board as Chairman nec-

essarily carried with it the implication that he has certain duties "not common

to a mere membership on the board".



In order to determine what those duties are, it is necessary for us to

resort to Georgia cases and to recognized legal authorities on this subject.

In 43 Am. Jur. 68, par. 249, it states:

"In general, the powers and duties of public officers are prescribed by

the Constitution or by statute, or both, and they are measured by the terms

and necessary implications of the grant and must be executE:d in the manner

directed and by the officer specified". On page 69 in paragraph 250 of the same volume quoted, supra, it is
stated: "The duties of public officers include all those which fairly lie within its
scope, those which are essential to the accomplishment of its main purpose for which the offices are created and those which are germane to or serve to promote or benefit the accomplishment of the general purposes".
In the case of Woodridge v. Moreland, 100 Neb. 864, it was held: "A statute conferring authority upon an officer or Board should be strictly construed and all powers not specifically granted or necessarily im-

plied are reserved". In the case of Beall v. The State, 9 Ga. 367, it was held: "When a public trust or duty is required to be done by a definite number
of persons, a majority of that definite number may act". This principle has been followE:d in many Georgia decisions. See also Rail-
road Commission of Georgia v. L. & N. Railroad, 140 Ga. 817. Section 102-102 of the Georgia Code of 1933 provides in part: "The following rules which govern all statutory enactments ... (5) a
joint authority given to any number of persons, or officers, may be executed by a majority of them unless it is otherwise declared." (Emphasis supplied).

From the above authoritiE:s, we can gather this general principle: Where the legislature intends that one member of a Board or Commission shall perform duties or exercise powers different from those the Board or Commission acting through a majority of its members may exercise such duties and such powers should be clearly and specifically defined by statutE:. In the absence of specific statutes defining the duties and powers of one member of a Board or Commission, the Board or Commission as such shall exercise all powers and perform all duties relating to the functions for which it was

created.

As to the duties of the Chairman of the State Board of WorkmE:n's Compensation, which are necessarily implied by virtue of his being designated as Chairman, the Supreme Court of Georgia, in the case of Patten v. Miller, 190 Ga. 156; held:

"The title of (Chairman) alone carried with it the burden of dutiE:s not common to a mere membership on the Board. The Chairman of the Board is the presiding parliamentary and administrative officer. His duties as such are manifold and well recognized, though perhaps not subject to any exact definition or enumeration. As between thE: various members of the Board and the

662
Chairman, it is not, with respect to the performance of particular acts, a question of power and authority, but one of orderly administration. There may be in fact no duties which the Chairman merely by virtue of his designation as such must or has the sole power and right to perform, but there are many matters which, if he be properly recognized by the other members of the Board, should be re:ferred to him for action; this is in' the interest of orderly and proper administration by the Board of its functions. The Chairman is generally recognized as the proper officer. to whom matters should be referred for action by the Board, to make reports of its actions, to see that its orders are properly carried out, and many other administrative details. The necessity for a Chairman of a Board such as the Highway Board is recognized on all sides, and it must assure:dly follow that such an officer is called upon to perform duties not common to the other members. Our conclusions are that since the position of Chairman of the State Highway Board is prescribed by statute, it is not to be taken as a mere empty title, but involves the performance of many duties not common to the other members of the Board".
In an opinion rendered May 6, 1940 by you when you were Attorney General of Georgia to the State Highway Department where the questions upon which I am unde:rtaking to rule were raised, it was held in Opinions of the Attorney General 1939-41 at page 635 as follows:
"With the possible exception of presiding at Board meetings, the administrative functions to be performed by the Chairman are to my mind variable, depending upon the modus operandi marked out by the Board for the execution of its functions of carrying on the work of the Highway Department. The service:s falling within this category to be performed by the Chairman for the Board are subject to the superior authority and will of the Board itself. In this view, in the absence to any contrary action by the Board, the Chairman would be under the duty and would have the right, as between the Chairman and any other individual member of the Board, of performing many administrative acts which cannot be exhaustively defined and enumerated. The Board may properly call upon the Chairman to pe:::-form any or all acts for it, not delegated by the General Assembly to other officers, and which do not call for execution by the Board itse:lf; or the Board may provide other legitimate means for their execution. In other words, it is my belief that the General Assembly in creating a Chairmanship of the Highway Board did so for the convenience of the Board, in that the Board is privileged to expect and to call upon such member for the performance of duties or services not calling for the action of the Board or delegated by the General Assembly to another officer, but that as a general rule, the Board has the right to determine and provide how, in what manner and by whom administrative acts shall be performed".
In the light of the above authorities, it is my opinion that the Chairman of the State Board of Workmen's Compensation is authorized to exercise two duties not common to the other members of the Board. These duties have been pointed out elsewhere: in this opinion. I am of the opinion that the Chairman of the State Board of Workmen's Compensation is the proper parliamentary officer to preside at the meetings of the Board for the purpose of regulating its proceedings. The Chairman of the Board does not acquire the authority by virtue of such office to pe:rform the powers and duties vested by the General Assembly in the State Board of Workmen's Compensation. No

663
member of the Board acting individually may perform the duties and powers vested by the Legislature in the State Board of Workmen's Compe:nsation but, in accordance with the fundamental and democratic rule of the majority, such authority may be exercised by a majority of the members of the Board.
I am also of the opinion that the Ge:neral Assembly of Georgia intended to vest and did vest the administration of the State Department of Workmen's Compensation in a State Board of Workmen's Compensation consisting of three (3) members, one of the three to act as Chairman as provided for in Code Section 54-109. I am of the further opinion that the General As-sembly intended that the State Board of Workmen's Compensation should administer the Department of Workmen's Compe:nsation, its functions and affairs in an orderly, business-like and harmonious manner, ever mindful of the trusteeship reposed by law in the Board.
tAW LIBRARY
i1l'-HVERSITY OF GEORGI~
,\THnJS. GEOr~GlA

665
PART III List of Appellate Court Cases

666
TABLE OF CASES
Handled by Department of Law in Appellate Courts,
September 1, 1945 through December 31, 1947
Allen v. The State..........------------------------------------------------------------------201 Ga. 391 Andrews v. State-----------------------------------------------------------------------------------196 Ga. 84 Andrews v. State of Georgia..,....-----------------------------------------------------320 U. S. 780 Andrews v. Robertson.........-----------------------------------145 F. 2d 101; 324 U. S. 874 Andrews v. Atkinson............------------------------------------------------------327 U. S. 787, 818 Andrews v. Aderhold.................................................201 Ga. 132; 329 U. S. 755 Atlanta, Birmingham and Coast R. R. Co. v. Cook.....................73 Ga. App. 435 Atlantic Coast Line Railroad v. Thompson...........................................200 Ga. 856 Atlantic Coast Line Railroad v. Phillips............................................332 U. S. 168
Barnes v. State...--------------------------------------------------------------------------------200 Ga. 402 Barnes v. Aderhold, Warden..........----------------------------------------------------201 Ga. 524 Beasley v. Burt, et aL.....------------------------------------------------------------------201 Ga. 144 Berkeley v. State Board of Medical Examiners............................74 Ga. App. 711 Berrien County, et al v. Vickers..................................................73 Ga. App. 863 Bevins v. State.............-------------------------------------------------------------------200 Ga. 729 Birdell v. State...----------------------------------------------------------------------------200 Ga. 785 Boyd v. State......----------------------------------------------------------------------------------201 Ga. 853 Brown v. State....---------------------------------------------------------------------------------201 Ga. 313 Brown and Dorsey v. State...---------------------------------------------------------201 Ga. 751 Bryant v. State....------------------------------------------------------------------------------202 Ga. 453 Burns v. State.....------------------------------------------------------------------------------------201 Ga. 200 Buttersworth v. State...---------------------------------------------------------------------------200 Ga. 13 Byars, et al v. Thompson.................................................................201 Ga. 867 '
Campbell v. State.....------------------------------------------------------------------------------202 Ga. 705 Carroll v. State-----------------------------------------------------------------------------200 Ga. 314 Carter v. State................................................--------------------------------------201 Ga. 375 Collins v. State....----------------------------------------------------------------------199 Ga. 830 Cook v. Fortson....................................................................................329 U. S. 675 Cotton v. State........................................................................................201 Ga. 285 Craiton v. State......................................................................................199 Ga. 829 Cromartie v. State....................................................................................202 Ga. 42 Curran v. Thompson....................................................................-........... 201 Ga. 189
Daniel v. State...................................................:....................................200 Ga. 316 Daniels v. State.............................................................-........................199 Ga. 818 Davis v. State................................:...........................................................202 Ga. 13 Deering v. State........---------------------------------------------------------------------201 Ga. 756

667
Dennis v. State--------------------------------------------------------------------------------------201 Ga. 53 Dowdell v. State.--------------------------------------------------------------------------------200 Ga. 775 Dunson v. State-------------------------------------------------------------------------------------202 Ga. 515
Edge v. State--------------------------------------------------------------------------,-------------199 Ga. 431 Edge v. State....-----------------------------------------------------------------------------'----------200 Ga. 257 Edmonds v. State.......-----------------------------------------------------------------------------201 Ga. 108
Ford v. State.."-------------------202 Ga. 599 Fowler v. State-----------------------------------------------------------------------------.45 S. E. 2d 439 Fulton National Bank v. Landrum, et aL...------------------------------------------201 Ga. 867
Georgia Power Company v. Federal Power Commission................152 F. 2d 908 Gossett, alias Hill v. State---------------------------------------------------------------------201 Ga. 809
Handspike v. State.......--------------------------------------------------------------------------2 01 Ga. 519 Harper v. State...---------------------------------------------------------------------------------------201 Ga. 10 Hickman v. State------------------------------------------------------------------------------------199 Ga. 805 Hill v. State----------------------------------------------------------------------------------------201 Ga. 300 Hunter v. State........------------------------------------------------------------------------------200 Ga. 574 Huntsinger v. State...-------------------------------------------------------------------------200 Ga. 127
Jackson v. Houston, Warden......----------------------------------------------------------200 Ga. 399 Jackson v. Norton-----------------------;.--------------------------------------------------75 Ga. App. 650 Jackson v. State-----------------------------------------------------------------------201 Ga. 365 Jones v. State...---------------------------------------------------------------------------------------201 Ga. 793
King v. Chapman.......-------------------------------------------------------------------------154 F. 2d 460
Lewis v. State....--------------------------------------------------------------------------------------200 Ga. 388 Long v. Stanley, Warden....-------------------------------------------------------------------200 Ga. 239 Loughridge v. State.------------------------------------------------------------------------------201 Ga. 513 Loughridge v. State____________------------------------------------------------------------------202 Ga. 129
Mangum v. State.....-------------------------------------------------------------------------------201 Ga. 519 Mathis v. Scott, Warden..-----------------------------------------------------------------------199 Ga. 743 Matthews v. Everett, Chmn. Pardon & Parole Board..------------------------201 Ga. 730 Miller v. State Highway Department----------------------------------------------------200 Ga. 485 Mitchell v. State.-------------------------------------------------------------------------------------202 Ga. 247 Montgomery v. State...--------------------------------------------------------------------------202 Ga. 678 Moore v. State.........------------------------------------------------------------------------------202 Ga. 357 Morakes v. State------------------------------------------------------------------------------------201 Ga. 425 Morgan v. State----------------------------------------------------------201 Ga. 65; 74 Ga. App. 672 Morris v. Peacock, et aL.-------------------------------------------202 Ga. 524; 332 U. S. 832 Morris v. State.. --------------------------------------------------------------------------------------200 Ga. 471 Morris v. Aderhold, Warden.....-------------------------------------------------------------201 Ga. 533 Murray v. State.------------------------------------------------------------------------------------201 Ga. 201
l\icKay v. State------------------------------------------------------------------------------------200 Ga. 120 McKethan v. State.....------------------------------------------------------------------------------201 Ga. 23

6611
McKnight v. City of Decatur..................................................................200 Ga. 611 McMullen v. State..................................................................................199 Ga. 521
Napper v. State........................................................................................200 Ga. 626
Oaks v. State..........................................................................................201 Ga. 365 Osborne v. State......................................................................................200 Ga. 763 Owen v. State................................................................................-.........202 Ga. 616
Patterson v. State....................................................................................199 Ga. 773 Patterson v. State Highway DepartmE:nt, et aL..................................201 Ga. 860 Phillips, Comm'r v. General Electric Supply Co...........................45 S. E. 2d 682 Phillips v. King Plow Company......................................................74 Ga. App. 758 Plummer v. State....................................................................................200 Ga. 641 Plunkett, Warden v. NeaL....................................................................201 Ga. 752 Porter v. State........................................................................................200 Ga. 246 Post vs. State............................................................................................201 Ga. 81 Pressley v. State......................................................................................201 Ga. 267 Pulliam v. State......................................................................................199 Ga. 709
Ransom v. State.......------------------------------------------------------------------------.-------202 Ga. 339 Reddick v. State......................................................................................202 Ga. 209 Reed v. State..........................................................................................201 Ga. 789 Russaw v. State.....................................................:................................200 Ga. 666
Scott v. State..........................................................................................202 Ga. 128 Smith v. State........................................................................................ 202 Ga. 851 Smith v. State...........-------.----------------------------------------------------------200 Ga. 188 Stanford v. State....................................................................................201 Ga. 173 State Highway Department v. Mrs. Buren Parktr....:...................75 Ga. App. 237 State Ports Authority v. Arnall, Gov., et aL........................................201 Ga. 713 Stevenson v. State...........................-......................................................201 Ga. 201 Strickland v. State..................................................................................199 Ga. 792
Teasley v. State......................................................................................202 Ga. 316 Thompson, Rev. Comm'r v. Atlantic Coast Line R. R.........................200 Ga. 856 Thompson, Rev. Comm'r v. Continental Gin Co...........................73 Ga. App. 694 Thompson, Rev. Comm'r v. Eastern Air Lines....................................200 Ga. 216 Thompson, Rev. Comm'r v. Georgia Power Company....................73 Ga. App. 587 Thompson (or Phillips) v. Sinclair Refining Co.............................44 S. E. 2d 671 Thompson v. Talmadge.........................................................................-201 Ga. 867 Todd v. State..........................................................................................200 Ga. 582 Turman v. Duckworth..........................................................................329 U. S. 675
Vickers, et al v. Jones, et aL..................................................................200 Ga. 338
Weaver v. State....................:.......-.........................................................200 Ga. 598 W~iss v. Hood........................................................................................199 Ga. 722

669
'Veiss v. Hood-----------------------------------------------------------------------------------------200 Ga. 795 'Vest v. State------------------------------------------------------------------------------------------200 Ga. 566 Wheeler v. Board of Trustees of Fargo Consolidated
School District, etc., et aL------------------------------------------------------------200 Ga. 323 Wilkes v. Aderhold, Warden------------------------------------------------------------------202 Ga. 641 'Villingham v. State----------------------------------------------------------------;---------------201 Ga. 339
Yearwood v. State______________ -----------------------------.------------------------------------ 201 Ga. 247

671
PART IV
Index to Opinions of the ' Attorney General

672
INDEX TO OPINIONS OF THE ATTORNEY GENERAL
Page
ACTS OF THE GENERAL ASSEMBLY See Constitution of the State
ADJUTANT GENERAL See Public Defense
ADOPTION Legitimate child, father's consent required............................................................418
AD VALOREM TAX See Public Revenue
AGRICULTURAL AND INDUSTRIAL DEVELOPMENT BOARD Contract for historical research..............................................................................287
AGRICULTURE See Food and Drugs Farmers Markets: Branch Markets may be established.................................................................... 9 Livestock markets may not be established...~.................................................... 11 Right of way through, may not be leased.......................................................... 11 Feed, Ground or cracked grain regulated as........................................................ 13 Market Bulletin: Financed by appropriations.................................................................................. 18 Subject matter authorized...................................................................................... 18 Poultry: Confiscation for unlawfully entering State........................................................ 15 Penalty for violating law regulating.................................................................. 15 Regulation of interstate shipments...................................................................... 15 Weights and Measures: Rules and regulations, authority to promulgate................................................ 22 Scales, adjustment .................................................................................................. 22
ALCOHOLIC BEVERAGES See Intoxicating Liquors
APPROPRIATIONS Board of Regents, not used for revenue bonds....................................................235 Common school funds, not used for trade schools..............................................139 Contingent fund, use to pay financial advisor....................................................300 Continuing, invalid ....................................................................................................645 Department of Public Safety, advertising safe driving....................................601 1\Iarket Bulletin, financed by.................................................................................... 18 National Guard, not used for canteen to sell beer.............................................. 53 Publication of Governor's messages and papers...................................................:299 School equalization fund, basis for allocation......................................................191 State Board of Health, use to pay expenses of Hospital Advisory Committee ................................................................................................................ 523

673
Page
State Highway Department: Act of 1946, use..........................................................................................:.............628 Financial advisor, not used to pay......................................................................300 Matching Federal funds, not used for 100% State project............................622 Sinking fund, not used for road construction....................-................................622
State Ports Authority, continuing, invalid............................................................645
ARCHIVES AND HISTORY Private publication of records..................................................................................289
ATTORNEY GENERAL See Executive Department
BANKS AND BANKING Account, inactive, when service charge authorized.............................................. 30 Branch banks, not established under Act approved July 20, 1929.................... 23 Capital: Amount required for bank in unincorporated area........................................ 42 Increase by charter amendment............................................................................ 25 Charter: Amendment: Capital increase ....................................................................................................25 Limiting votes of common stockholders.......................................................... 48 Renewal: Law governing .................................................................................................... 27
Period ...............................'..................!.................................................................. 28
Revival: Date of ................................,................................................................................. 28 Period of ................................................................ .............................................. 28
Deposit, secured, constitutes loan............................................................................ 35 Director:
Loan committee member should be...................................................................... 44 President must be.................................................................................................... 44 Qualifications .......................................................................................................... 44 Trust matters, delegation...................................................................................... 45 Vice president should be........................................................................................ 44 Examiners entitled to mileage and subsistance, when........................................ 31 Intangibles,. report of ownership to State Revenue Commissioner..................575 Loan Limitations: Amount to one person............................................................................................ 33 Guaranty by Commodity Credit Corporation, effect...................................... 41 Guaranty by Veterans Administration, effect................................................ 37 Interest not included when applying.................................................................. 37 Secured by agricultural products........................................................................ 33 Secured by manufactured or industrial products............................................ 35 Secured by real estate, effect of R.F.C. participation...................................... 39 Locations: Branch offices ........................................................................................................ 23 Unincorporated areas ............................................................................................ 42 Merger, may not revert to former status................................................................ 43

674

Page

Officers: Loan committee member should be director........................................................ 44 President must be director.................................................................................... 44 Trust committee, delegation of duties by directors............................................ 45 Vice president should be director........................................................................ 44
Service charge on inactive account, when authorized.......................................... 30 Small loan companies, regulation............................................................................ 47 Stock, limitation on voting by charter amendment.............................................. 48 Superintendent:
Approval of charter amendment increasing capital........................................ 25 Mandamus requiring approval of charter does not require issuance
of permit .............................................................................................................. 30 Small loan companies, regulation........................................................................ 47 Taxation, deduction of value of real estate from value of stock......................591 Trust matters, delegation by directors.................................................................... 45

BARBERS AND HAIRDRESSERS See Professions, Businesses and Trades

BEE DISEASE LAW

Enforcement

5

BEER See Intoxicating Liquors

BIBLE See Education

BOARD OF REGENTS See Education

BUILDING SAFETY COUNCIL Regulations approved by Department of Public Safety....................................364

BUSINESSES See Professions, Businesses and Trades

CHICKAMAUGA - CHATTANOOGA NATIONAL MILITARY PARK Jurisdiction over game and fish law violations..................................~ .................. 51
CHIROPRACTORS See Professions, Businesses and Trades
CITIZENSHIP Loss of, by conviction................................................................................................477

CITY COURTS See Courts
COMMISSIONER OF AGRICULTURE See Agriculture
COMMISSIONER OF LABOR See Industrial Relations

Page
COMMISSIONERS OF ROADS AND REVENUES See Counties
COMPTROLLER GENERAL Quarterly statements of officers on a fee basis not required............................536 Reports to the Governor..........................................................:.................................291
COMPULSORY SCHOOL ATTENDANCE See Education
CONGRESS See Elections
CONSPIRACY Participating in, effect..............................................................................................101
CONSTITUTION OF THE STATE Amending unrelated code sections by single Act.................................................. 1 Amendments, election for voting on........................................................................145 DeKalb Bond Commission Act invalid..................................................................172 Ga. L. 1945, p. 434 valid..........................................................................................471 Ga. L. 1945, p. 883 invalid........................................................................................ 1 Minors, permitting binding contracts by, valid....................................................471 Municipal home rule, provisions not self-executing............................................413 Notice of local or special legislation: Contents ................................................................................................................... 3 Evidence .of publication, requirements................................................................ 4 Time of publication.................................................................................................. 3 Police Court of Savannah, act authorizing taking of guilty pleas in misdemeanors invalid ............................................................................................435 Revenue certificates for gas plants, provisions not self-executing..................415 Speed limits, fixing by Department of Public Safety, valid..............................40S State Board of Public Welfare, provisions self-executing..................................64<3 State Ports Authority: Appropriation, continuing, invalid......................................................................645 Contracting for State to pay cost of maintaining docks invalid.................... 638 Securing refunding bonds with W. & A. rentals invalid................................638 Veteran's Education Council, Sections 16, 17 and 18 of Act creating, valid....474 Zoning provisions not self-executing......................................................................416
CONTRACTS A. and I. D. Board, for historical research............................................................287 County board of education with independent system for transportation and education of children......................................................................................186 Insurance: Construction ............................................................................................................368 Funeral service or merchandise, prohibited....................................................366 Hospitalization, caesarian operation covered....................................................368 Minors, act permitting binding contracts by, valid..............................................471 State Board of Education with Veterans Administration to carry out Veterans Farm Training Program......................................................................197

676
Page
State Board of Health with Emory University for training in children's dentistry ..................................................................................................................529
State Board of Health with F.W.A. for use of hospital by the State............524 State Department of Public Welfare with a county for the erection of a
water system at Milledgeville State Hospital....................................................284 State Division of Conservation with a county for development and opera-
tion of a State park................................................................................................331 State Highway Department:
Counties may not bid..............................................................................................615 Funds must be available before execution........................................................ 620 Maintenance by county with convict labor of road built with
Federal funds ......................................................................................................624 Payment not made until approved funds transferred to the Department....620 State Ports Authority, for State to pay cost of maintaining docks, invalid....638 State Superintendent of Schools, authority to execute........................................197
CONVICT LABOR See Prisons and Prisoners
CORONERS Fees .............................................................................................................................. 57 Inquests: Costs, responsibility for.......................................................................................... 57 Fee for holding........................................................................................................ 57 Jury: Compensation ...................................................................................................... 57 Duty to summon.................................................................................................. 57 Fee for summoning.............................................................................................. 57 Physician: Compensation ...................................................................................................... 57 When required ............ .................................................................................... .... 57 'Vhen must be held.................................................................................................. 57
CORPORATIONS Trade names, use........................................................................................................652
COUNTIES Baldwin: Allocation of common school funds to G.M.C.....................................................155 Contract for erection of water system at Milledgeville State Hospital.. ......284 Commissioners of Roads and Revenues: County school superintendent, ineligible to be................................................147 Elective, need not be.............................................................................................. 63 Election precincts, may create, change or abolish............................................ 61 Officers on a fee basis, may supplement, when.............................................. 67 Consolidation, procedure .......................................................................................... 64 County A~torney, compensation for collecting school funds ..............................136 Depository, may be selected under local Act........................................................651 Eminent domain for school purposes, no power o..............................................141 Hospital, construction from current funds............................................................ 69

677
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Hospital Authority: Ad valorem tax, may not lev,y............................................................................554 Convict labor, use....................................................................................................422 State jurisdiction .................................................................................................... 65
Narne, General Assembly may change....................................:............................... 65 Officers:
Fees: Change or supplement during term................................................................ 66 Supplement, statutory authority required...................................................... 67
Municipal office, eligibility for............................................................................ 68 Salary, change or supplement during term........................................................ 66 State highway contracts, may not bid.....................................................................615 Taxation: Schoolhouses, to construct......................................................................................136 Social Security, liability for.................................................................................. 59 Teachers retirement fund, for contributions....................................................209 Teachers retirement fund for county agent, for contributions....................209 Workmen's compensation for employees, to provide........................................654 Treasury, disposition of fines and forfeitures...................................................... 89 Turnkey fees, payment.............................................................................................. 91
COUNTY BOARD OF EDUCATION See Education
COUNTY BOARD OF PUBLIC WELFARE County board of education member ineligible........................................................648
COUNTY HOSPITAL AUTHORITY See Counties
COUNTY SUPERINTENDENT OF SCHOOLS See Education
COURTS City Courts: Blakely, term of solicitor...................................................................................... 70 Fines and forfeitures, disposition........................................................................ 75 Solicitor, amendment extending term requires no notice or referendum...... 74 Justices of the Peace: Absence, when creates vacancy............................................................................ 79 Bail trover cases, jurisdiction.............................................................................. 77 Election, three freeholders must superintend....................................................245 Jurisdiction, bail trover cases.............................................................................. 77 Jurors, absent, authority to fine ........................................................................396 Mayor, eligibility to hold office of........................................................................ 79 Vacancy: Absence, when creates........................................................................................ 79 Method of filling.................................................................................................. 78 Juvenile Courts: Judges, qualifications ............................................................................................ 81

678
Page
Jurisdiction, effect of method of creation.......................................................... 81 Ordinaries:
Absentee ballots, may certify, when....................................................................282 Clerks, no fees provided........................................................................................ s:~ CompulSQry school attendance law, may not try violators.............................. 82 Incapacitated, who may act.................................................................................... 87 Jurisdiction in traffic cases, must exercise........................................................ SS Lunacy proceedings, fees........................................................................................ 84 Marriage records, may not correct misnomer.................................................... 86 Sheriff, fills vacancy in office of........................................................................ 93 Tax Collector, fills vacancy in office of............................................................ 83 Traffic cases, must exercise jurisdiction............................................................ 88 Police Court of Savannah, may not take guilty pleas in misdemeanors..........435 Sheriffs: Costs in felony cases, how paid............................................................................ 89 Fees:
Arrest: Assisting State Patrol.................................................................................... 94 County police making...................................................................................... 96 Only one, regardless of number of offenses.............................................. 92
Lunacy proceedings .......................................................................................... 84 Tax fi. fas:
Collecting .......................................................................... ................................ 8!.1 Nulla bona return............................................................................................ 95 Turnkey ................................................................................................................ 91 Tax fi fas, refusal to accept, penalty................................................:................. 95 Vacancy, anticipated, election to fill.. .................................................................. 93 Solicitors General: Candidates for, certification of names to ordinary..........................................246 Vacancy, election to fill ..........................................................................................281 Superior Court Clerks: Fees: Attendance upon court...................................................................................... 97 Summoning jurors .............................................................................................. 99 Forma pauperis case, must perform duties regardless of truth of affidavit 98 Veterans certificate of service, recording.......................................................... lOO Superior Courts, may make writ of habeas corpus returnable to any county in circuit......................................................................................................353
CRIMES AND PUNISHMENT Conspiracy, effect of participating...........................................................................lOl Firing woods, lands or marshes, farmers excepted, when..................................102 Fish, using destructive substance to kill................................................................l05 Floating sawdust in streams..................................................................................105 Hitch-hiking not prohibited........................................................................................103 Income tax violations..................................................................................................564 Making false forma pauperis affidavit.................................................................. 98 Mob violence, failure of arresting officer to suppress........................................415 Pinball machines for amusement not prohibited....................................................104 Public intoxication ......................................................................................................390

679
Page
Slot machines ..............................................................................................................104
CRIMINAL PROCEDURE Fine in lieu of imprisonment, time for payment..................................................llO Forfeited bond in habeas corpus proceeding, disposition.......,............................106 Sentence: Change or modification: After term ..........................................................................................................107 After term and affirmance on appeal............................................................115 After term when motion for new trial pending............................................l19 After term when probation granted..............................................................107 Court may not reserve right to, after term....................................................l12 Probation, revocation ........................................................................................107 Concurrent, unless otherwise specified................................................................115 State, commences upon release from Federal with good time credit..........llS
DEEDS Recording, time from which effective.................................................................... 120
DENTISTS See Professions, Businesses and Trades
DEPARTMENT OF AGRICULTURE See Agriculture
DEPARTMENT OF ARCHIVES AND HISTORY Private publication of records..................................................................................289
DEPARTMENT OF FORESTRY AND GEOLOGY See Forestry and Geology
DEPARTMENT OF PUBLIC HEALTH See Public Health
DEPARTMENT OF PUBLIC SAFETY See Public Safety
DEPARTMENT OF REVENUE See Public Revenue
DEPOSITORIES County, may be selected under local Act................................................................651 State funds, disposition of, by county tax collector..............................................651
DIVORCE AND ALIMONY Grounds, military service by husband is not........................................................ l21 Judgment, effective date............................................................................................122
DRIVERS LICENSES See Public Safety
EDUCATION Bible: Instruction avoiding denominationalism not prohibited..................................159 Reading in public schools required......................................................................159

680
Page
Bonds for schoolhouses: Consolidation of liability not authorized under 1945 Constitution................127 County school district issue, not limited by outstanding bonds for county purposes ..................................................................................................166 Election: County wide excluding independent systems..................................................168 Necessary for non-bonded district to assume................................................126 Petition unnecessary ..........................................................................................175 Enabling act, necessity..........................................................................................131 Local school district, payment from surplus county school funds ................170 Tax levy: Commissions of tax collector..............................................................................597 County wide excluding independent systems..................................................168 Exemption, homestead ......................................................................................174 Exemption, personalty ......................................................................................174 Expense of collecting bonds, not used for......................................................165 Surplus after retirement of bonds, use..........................................................163 When may commence..........................................................................................174
City board of education, tort liability......................................................................220
Common school funds: Accrediting associations, use to pay fees ..........................................................158 Georgia Military College, allocation to..............................................................153 Nursery schools, not used for................................................................................139 Surplus, use to retire local school district bonds..............................................170 Trade schools for veterans, not used for ..........................................................139
Compulsory school attendance law: Married woman exempt..........................................................................................124 Violation, jurisdiction over.................................................................................... 82 Work certificate, eligibility for............................................................................123
Consolidation of schools: Bond liability may not be consolidated under 1945 Constitution.........:..........127 Non-bonded former district could not assume bonds without election..........126
County Board of Education: Appeal from decision on children attending schools nearer their homes....223 Bond election, authority to call............................................................................168 Bond tax levy, recommends amount....................................................................174 County attorney, may not pay, for collecting school funds ............................136 Eminent domain, has no power of......................................................................141 Insurance on municipal school buildings, may not provide............................144 Member: Board of registrars, member of, eligible....................................................145 Board of tax assessors, member of, ineligible..............................................142 Commissions, issuance ........................................................................................~08 Local school district trustee, may be..............................................................131 Number limited to five......................................................................................131 Office not vacated by 1945 Constitutiorl........................................................128 One selected from county at large where only four militia districts........146 Resident of independent school district ineligible........................................148 Resigns to State School Superintendent........................................................146

681
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Selected by grand jury......................................................................................128 Selected from different militia districts..........................................................143 State or county welfare board, ineligible for................................................648 Term of office, expiration fixed by grand jury............................................128 Trustee of local school district, may be..........................................................131 Vacancy, failure to accept commission creates............................................144 Vacancy, filled by board until grand jury convenes....................................146 Vacancy, not created by 1945 Constitution..................................................128 President, State Superintendent of Schools may remit to, when................206 Property, may not convey to local school district..............................................168 School maintenance tax: Independent school district property excluded from levy..........................148 Recommends but does not levy........................................................................136 Surplus, use to pay matured local school district bonds............................170 Tax collector levies and remits........................................................................178 Transportation and education of children under contract with
independent system ........................................................................................186 Tax digest for school bond levy, prepares........................................................174 Transportation of pupils:
Insurance from destroyed building, may not use.,........................,..............186 Loan to be repaid from current revenue, may incur....................................134 Maintenance funds, use under contract with independent systems..........186 Private schools, may not provide....................................................................222 County Superintendent of Schools: Board of com;missioners of roads and revenues, member of, ineligible........147 Dispute over office, State Superintendent of Schools may not decide........203 Election, resident of independent district may not vote................................148 Resident of independent district eligible..........................................................14S Retirement, not compulsory at age seventy......................................................152 Teacher, employment as........................................................................................150 Teachers' Retirement System, eligibility............................................................152 DeKalb Bond Commission Act invalid....................................................................172
Georgia Military College: Common school funds: Allocation ............................................................................................................155 Entitled to receive..............................................................................................153 Jurisdiction vested in trustees............................................................................153
Independent school system may receive funds from Veterans Administration, when .........................................................................................157
Local school districts: Abolished ..................................................................................................................186 Bonds: Tax to retire, tax collectors commissions........................................................597 Tax to retire, disposition....................................................................................178 Validation after 1945 Constitution..................................................................160 Maintenance Tax: Abolished ..............................................................................................................178 Disbursement ......................................................................................................178 Schoolhouse districts, creation after 1945 Constitution.................................:188

682
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Trustees: County board of education, eligible for..........................................................131 Office not abolished by 1945 Constitution....................................................178
Nursery schools, common school funds not used for..............................................139
Religious instruction: Bible: Instruction avoiding denominationalism not prohibited..............................159 Reading of, required..........................................................................................159
Schoolhouses: Levy of special tax to build..................................................................................136 Amount of levy....................................................................................................176
State Board of Education: Appeals to: Children attending schools nearer their homes ............................................223 Decision, enforcement ........................................................................................193 De novo investigation, is not............................................................................196 Equalization funds, basis for allocation............................................................191 Incorporation of schools, when may require....................................................194 Textbooks recommended by professional textbook committee, method of obtaining................................:.........................................................202 Trade schools, establishment................................................................................195 Vocational Education program: Administration of Federal funds ....................................................196, 199, 201 Distribution of equipment..................................................................................189 Veterans Farm Training Program, authority to administer....................197
State Superintendent of Schools: Contracts, authority to execute..........................................................................197 County boards of education, issuance of commissions to members............208 County superintendent of schools, authority to resolve dispute over office..203 President of county board, may remit school funds to, when ........................206
Teachers' Retirement System: Academy for the Blind, faculty not entitled to preference............................210 County agent eligible....................................................................:.........................209 County superintendent of schools eligible........................................................152 Denominational schools, teachers ineligible........................................................218 Emergency certificate, regular teacher holding, eligible................................215 Georgia Evening College, teachers eligible......................................................217 Georgia High School Association, employees ineligible.................................... 211 Georgia Tech Athletic Association, employees ineligible................................213 Home demonstration agent eligible....................................................................209 Local retirement system, teachers under, ineligible..........................................212 Private schools, teachers ineligible......................................................................218 Private schools receiving district and county funds, teachers ineligiblc......218 Retiring before passage of act, eligibility........................................................21G
Trade schools: Common school funds not used for........................ .'.............................................139 State Board of Education, authority to cstablish............................................195 Tax exemption ........................................................................................................195

683
Page
Workmen's Compensation: Instructors are employees................................................................................658 Pupils are not employees.................................................................................... 658
Tuition, residents of school district not required to pay......................................224
University of Georgia: Board of Regents: Bids, authority to reject....................................................................................227 Bids on construction contracts, when required............................................227 Deposits must be secured....................................................................................226 General Assembly, members of, eligible..........................................................229 Members are public officers..............................................................................235 Regents of the University System: Corporate entity ................................................................................................231 Revenue bonds, not State obligations..........................................................-..231 Revenue bonds, appropriations to Board of Regents not used to liquidate ............................................................................................................235 Trust funds, payment of Deputy Assistant Attorney General from ......292
ELECTIONS Candidates: Certification of names to ordinaries............................................................246, 248 Five per cent law, requirements ..........................................................................238 Congress: Candidate, time for certification of name to ordinaries...............................248 Resignation, prospective, effective on date named..........................................241 Vacancy: Election to fill, time of......................................................................................239 \Vrit of election, when issued........................................................................241 Constitutional amendments, election for voting on............................................145 County officers: County commissioners, new board need not be elective.................................. 63 County superintendent of schools, resident of independent district may not vote........................................................................................................148 Sheriff, election to fill anticipated vacancy........................................................ 93 Disqualification of voters: Challenger may examine registrant....................................................................244 Notice of challenge: Costs, how paid....................................................................................................242 Service, how made..............................................................................................242 General Assembly: Governor, authority to elect..................................................................................302 Senator-elect, death of, issuance of writ of election........................................345 General election, off-year election is......................................................................376 Governor, authority of General Assembly to elect................................................302 Justices of the Peace, three freeholders must superintend................................245 Poll taxes, delinquent: Payment may not be demanded............................................................................254 Special election, does not disqualify voter..........................................................261 Voting, payment not a prerequisite....................................................................254

684
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Precincts, authority to change.................................................................................. 61
Primary elections: Ballots not taken from polls................................................................................255
Count: May begin, when.................................................................................................:255 Must be public......................................................................................................255
County: Ballots, party authorities furnish....................................................................396 Personnel, party authorities furnish..............................................................396 Registration, party authorities fix time for closing..................................257
Municipal: Ballots, party authorities furnish...........................................................:........396 Personnel, party authorities furnish..............................................................396 Qualifying, party authorities fix date............................................................255
State senator, held only in county whose turn it is to furnish nominee......256 Time for holding under Soldiers Vote Law......................................................27S Voting, place of........................................................................................................255 Qualifications of voters: Bond election ..........................................................................................................237 Illiteracy ..................................................................................................................259 National officers, age requirements....................................................................260 Summary of ............................................................................................................258 Registration: Change of residence, authority to withhold name from voters list..............275 Oath, who may receive..........................................................................................272 Poll tax defaulter, new registration not required............................................262 Time:
General elections ........................................................................................269, 274 Persons recently released from military service............................................267 Special elections ........................................................................................261, 269 Transfer ..................................................................................................................270
Voters list: Omission of name, effect....................................................................................277 Publication not required....................................................................................271
Secretary of State, time for certification to ordinaries..............................246, 248 Soldiers Vote Law, expiration date..........................................................................278
Solicitors General: Certification of names of candidates to ordinaries, time for........................246 Vacancy, election to fill is for unexpired term................................................281
Special election, may be held on same day as general........................................ 83 Tax collectors, time for special election to fill vacancy.................................... 83
Voting by mail : Ordinary may certify absentee ballot, when......................................................282 Soldiers Vote Law, expiration date.................................................................... 278
Where, when and how held: Courthouse precinct, all electors may vote at, when......................................282 Write-in votes valid................................................................................................283

685
Page
ELEEMOSYNARY INSTITUTIONS Milledgeville State Hospital: Commitment of patients, methods........................................................................532 Contract with county for erection of water system........................................284 Dead bodies, disposal ..............................................................................................521 Insane convicts, transfer......................................................................................428 Lunatics, admission on pay status without commitment................................285 Transfer of patient from Battey State Hospital............................................532
EMBALMERS Board may rate schools upon discontinuance of statutory rating authority....490
EMINENT DOMAIN County has no power of, for school purposes........................................................141
EMPLOYMENT SECURITY AGENCY Administers State employment offices..................................................................358
ENGINEERS Board may not contribute to council for professional development.. ..............491
~NTOMOLOGY
See State Department of Entomology
EQUITY Charitable trusts, supervision.................................................................................653 Injunction, Secretary of State bound as soon as notified....................................313
EVIDENCE Photostatic copies from microfilms are primary..................................................286 Witnesses, right of administrative agency to compel attendance not implied ......................................................................................................................457
EXECUTIVE DEPARTMEN'T Agricultural and Industrial Development Board may contract for historical research ..................................................................................................287 Attorney General and Department of Law: Constitutionality of statute, should not rule on................................................290 Deputy Assistant, appointment and compensation............................................292 Income tax violations, prosecution......................................................................564 State Board of Pardons and Paroles, may not advise whether conviction authorized ........................................................................................442 Comptroller General, reports to the Governor....................................................291 Governor: Acting, Acts of 1947 General Assembly must be presented to......................305 Appointment: Deputy Assistant Attorney General. ...............................................................292 Supervising Inspector of Naval Stores, duty to make.................................. 20 Contingent fund, payment of financial advisor from....................................300 Death of Governor-elect, incumbent holds over................................................30:! Executive Order, transfer of functions by......................................................322 Financial advisor, may employ............................................................................300

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Page
General Assembly, authority to elect..................................................................302 Henry Grady Hotel, may not require grant of priority to veterans..............541 Incumbent holds over upon death of Governor-elect......................................302 Insurance, authority to provide, for public buildings....................................542 Mansion, may not lease or rent........................................:...................................540 Merit systen1, establishment..................................................................................308 President of insurance company, may serve as................................................302 Price controls, may not create..............................................................................299 Primary election laws, expense of defending....................................................297 Publication of messages, use of State funds ....................................................299 Revision of bills:
Effective date of Act, may not change........................................................296 Invalid by person designated in void election................................................305 Local acts, may not appoint committee to complete enrolling..................307 Time for .............................................................................................................. 294 State Capitol grounds, may not deed strip to city..........................................544 State property, disposal of unserviceable............................................................549 Merit system of personnel administration: Alto Medical Center, employees coyered............................................................312 Appointing authority need not sign dismissal notice ........................................355 Battey State Hospital, employees covered........................................................312 Commissioner of Labor may dismiss employee for cause..............................355 Departments for which authorized....................................................................308 Dismissal: Commissioner of Labor's Authority for cause............................................355 Notice of, need not be signed by appointing authority................................355 Free medical treatment centers, employees exempt........................................311 Governor's authority to establish........................................................................305 Merit System Council, supplanted by State Personnel Board......................308 Preferences: Federal Civil Service Laws as a basis............................................................469 Veterans, definition ..........................................................................................469 Widows of veterans............................................................................................469 Wives of disabled veterans................................................................................469 State Personnel Board supplanted Merit System Council..............................308 Veteran's Education Council, employees covered after probationary period ....................................................................................................................474
Secretary of State: Certification of names of candidates to ordinary....................................246, 248 County maps, may not correct errors................................................................314 Delegation of ministerial duties............................................................................312 Great Seal of State, use on map by private concern........................................308 Injunction against, binding as soon as notified..............................................313
State Auditor, prescribes forms for reports of county hospital authority........ 65 State Treasurer, may honor warrant payable to office by title only................315 Supervisor of Purchases:
Advertising contract for Milk Control Board must be made by....................317 Municipal boards of education, authority to purchase for............................317 Purchase orders, authority to cancel....................................................................318

687
Page
FARMERS MARKETS See Agriculture
F.D.R. WARM SPRINGS MEMORIAL COMMISSION See Warm Springs Memorial Commission
FEED Ground or cracked grain, when regulated............................................................ 13
FINES Fine in lieu of imprisonment, time for payment................................................llO Game and fish violations, disposition: City Court ................................................................................................................ 75 General ......................................................................................................................334
FIRING WOODS Farmers excepted, when................................ ,...........................................................102
FOOD AND DRUGS Dairies and dairy products: Milk Control Board: Eligibility, limited to two from a congressional district............................318 Vote may be deferred until next regular meeting........................................319 Department of Agriculture, has supervision........................................................322 Feed, grain prepared for, analysis tag and inspection stamp required............ 13 Fish, wholesale dealers in: Regulatory fee is in addition to license tax......................................................321 Veteran's license exemption, effect........................................................................484 Oleomargarine: Acts of 1882 and 1883 repealed............................................................................321 Non-resident manufacturers, shipping statements not required....................321
FORESTRY AND GEOLOGY Department of Forestry: Automatic firebox law, no authority to enforce................................................327 Deed restrictions to use as a State Forest, effect............................................324 Lease by, how executed............................................................................................326 State Parks: Contract with county for development and operation........................................331 Held under license, authority to improve............................................................328 Lease, authority to ..................................................................................................330 Roadside, supervision ..............................................................................................333
FORFEITURES Bond in habeas corpus proceeding, disposition......................................................106
GAME AND FISH Fines and forfeitures, disposition: City court .................................................................................................................. 75 General ......................................................................................................................334 Fishing: Licenses, suspension or revocation for violations..............................................338

688
Page
Municipal regulation, when authorized................................................................340 Nets, power drawn, in outside salt waters not prohibited............................340 Summary seizure of fishing gear :m)ay be provided............................................336 Summary trial of violators may not be provided............................................336 Torts, liability of enforcement officers.................................................................342 Vessels:
Boarding and searching ....................................................................................342 Custody, taking into ..........................................................................................342 State Game and Fish Commission: Contributions, authority to accept ..................................................................344 National military park, jurisdiction in............................................................ 51 Wild Life Rangers patrolling lands of designated landowners........................344
GENERAL ASSEMBLY Extraordinary session, requirements of certificate to convene........................347 Governor, authority to elect......................................................................................302 Member: Director of Veterans Education, eligible for appointment as..........................350 Qualifications, each House judges...........................~ ...........................................478 Regent of the University System, eligible a;;....,.................................................229 Veteran's Education Council, ineligible for appointment to........................349 Senator, primary election........................................................................................256 Senator-elect, death of: Governor may issue writ of election....................................................................345 Senate determines whether incumbent holds over............................................345
GEORGIA See State of Georgia
GEORGIA BUREAU OF INVESTIGATION Salary increase, personnel included..........................................................................599
GEORGIA MILITARY COLLEGE See Education
GEORGIA STATE GUARD Commander disqualified as Adjutant General......................................................517
GEORGIA STATE PATROL Warrants, authority to execute................................................................................604
GOVERNOR'S HORSE GUARD Property belongs to the State..................................................................................518
GRAND JURY County board of education: Selection ................................................................................................................:...128 Term of office, how fixed ..........................................................................................12S
GREAT SEAL Use on road maps by private concern......................................................................308
HABEAS CORPUS Return of writ, place..................................................................................................353

689
Page
HAIRDRESSERS See Professions, Businesses and Trades
HEALTH See Public Health
HENRY GRADY HOTEL See Public Property
HITCH-HIKING Not prohibited ..............................................................................................................103
HOLIDAYS Thanksgiving Day ........................................................................................................ 54
HOMESTEAD EXEMPTIONS See Public Revenue
HOSPITAL AUTHORITY See Counties
HUSBAND AND WIFE Married woman exempt from compulsory school attendance............................l24
INCOME TAX See Public Revenue
INDEPENDENT SCHOOL DISTRICTS See Education
INDUSTRIAL RELATIONS Commissioner of Labor, dismissal of employee for cause................................355 Maximum hours, applicability to textile workers................................................354
INQUESTS See Coroners
INSURANCE Agents: May act only for licensed companies....................................................................361 Persons examining risks are................................................................................361 Bond, validity where payable to Governor-elect who died before taking office 363 Building Safety Council, approval of regulations................................................364 Contracts: Construction ..............................................................................................................368 Funeral service or merchandise prohibited........................................................366 Deposit: Casualty company, additional not required to write fire and theft............365 Life insurance company, return upon withdrawal............................................371 Governor, authority to provide, for public buildings..........................................542 Health and Accident, insurable interest of employer in employee..................367 Hospitalization, caesarian operation covered........................................................368 Life insurance company, withdrawal......................................................................371

690

Page

Municipal school buildings, county board of education may not insure............144 Mutual company, State may not insure in............................................................371 Reciprocal or inter-insurance exchange, authority to operate..........................374 Retaliatory tax, municipal license taxes not credited........................................374 State may not insure in mutual company..............................................................371 Withdrawal, notice or reinsurance not required of life company....................371

INTANGIBLE TAX See Public Revenue

INTOXICATING LIQUORS

Alcoholic beverages :

Automobiles, evidence required to condemn........................................................379

Church, distance of place of sale..........................................................................381

Election, requirements of petition to call............................................................376

Schoolgrounds, distance of place of sale..............................................................381

Tax:

Collection for liquor previously sold................................................................377

Dry counties, not required on liquor found in................................................377

Other penalties do not relieve..........................................................................377

Malt beverages:

Church, distance of place of sale.......................................................................... 393

Election to prohibit, no provision for....................................................................394

License:

Discretion as to grant or refusal....................................................................394

State may not grant, for use at Marietta Army Air Field.......................... 53

School, distance of place of sale............................................................................381

Tax:



Lien attaches, when..............................................................................................394

Seizure for, courts will not aid recovery........................................................394

Public Intoxication:

Arrest without a warrant, when........................................................................390

Curtilage, definition ................................................................................................390

Indictment, requirements ........................................................................................390

Place of public gathering or assembly defined....................................................390

Producing agent, indictment must specify..........................................................390

Wine:

Election to prohibit, requirements of petition....................................................394

School, distance of place of sale............................................................................381

JURY Absent, may be fined by justice court....................................................................396 Age, minimum for eligibility....................................................................................396 Compensation: Coroners .................................................................................................................... 57 Justice courts ............................................................................................................396 Women, General Assembly may require service by................................................395

JUSTICES OF THE PEACE See Courts

691

Page

JUVENILE COURTS See Courts

LAND REGISTRATION

Recording:

.

:Mineral lease, effect of failure ..............................................................................397

Requirements not changed by new notary public act....................................398

Signatures, facsimile, improper................................................................................399

LIVE STOCK Insufficient fences, Department of Corrections not liable....................................399

LIVESTOCK MARKETS Commissioner of Agriculture may not establish................................................ 11

LOCAL OR SPECIAL ACTS See Constitution of the State; Courts

LOCAL SCHOOL DISTRICTS See Education

LUNACY PROCEEDINGS Costs .............................................................................................................................. 84

MALT BEVERAGES See Intoxicating Liquors

MARlETTA ARMY AIR FIELD Appropriations for National Guard not used for canteen to sell beer............ 53

MARKET BULLETIN See Agriculture

MARK!j::TING ASSOCIATIONS "Co-op" in name of taxi company not prohibited................................................400

MEDICAL PRACTITIONERS . License may not be withheld until one year internship completed..................491

MERIT SYSTEM See Executive Department

MILK CONTROL BOARD Advertising contract, Supervisor of Purchases must make or approve..........317 Eligibility, limited to two from a congressional district..................................318 Vote may be deferred until next regular meeting................................................319

MILLEDGEVILLE STATE HOSPITAL See Eleemosynary Institutions

MINISTERS State license not required..........................:............................,................................493

MOB VIOLENCE Failure of arresting officer to suppress................................................................415

692
/'age
MOTOR CARRIERS See Public Service Commission
MOTOR FUEL TAX See Public Revenue
MOTOR VEHICLES See Public Safety
l\IOTOR VEHICLE SAFETY RESPONSIBILITY ACT See Public Safety
MUNICIPAL CORPORATIONS Bonds, amount of issue, how computed..................................................................411 Charters, how granted................................................................................................412 Church, exemption from taxes..................................................................................414 Fishing, regulation ....................................................................................................340 Gas plants, enabling act required to issue revenue certificates........................416 Home rule, constitutional provisions not self-executing....................................413 1\iob and riot damage, no liability..........................................................................415 Motor vehicles, may not levy license tax on............................................................400 Office: County officer eligible............................................................................................ 68 Justice ~f the peace eligible.................................................................................. 79 Parsonage, no exemption from taxes......................................,...............................414 Railroads, may not levy license tax on..................................................................413 Schools, use of convict labor to erect....................................................................423 Taxation: Church, exemption ..................................................................................................414 Motor vehicle license tax, may not levy............................................................400 Parsonage, no exemption....................................................................................... .414 Railroad license tax, may not levy......................................................................413 Time, statutory, binding for legal purposes.......................................................... 56 Torts, no liability for mob and riot damage........................................................415 Zoning, constitutional provisions not self-executing............................................416
NATIONAL GUARD Appropriation not used for canteen to sell beer................................................ 53
NAVAL STORES License fees, collection................................................................................................ 20 Supervising Inspector: Appointment ............................................................................................................ 20 Compensation .......................................................................................................... 20
NOTARIES PUBLIC Appointment, certificate by two freeholders not required................................418 Recording, requirements not changed by new Act............................................398
NURSES Board may grant advanced credit, when................................................................494

693
I'age
OCCUPATION TAXES See Public Revenue
OPTOMETRISTS See Professions, Businesses and Trades
ORDINARIES See Courts
PARDONS AND PAROLES See State Board of Pardons and Paroles
PARENT AND CHILD Adoption of legitimate child, father's consent necessary..................................418 Legitimacy, presumption ..........................................................................................418 Support, duty of stepfather, when........................................................................420
PENAL INSTITUTIONS See Prisons and Prisoners
PENSIONS Ex-Confederate soldiers and sailors, duration......................................................468
PERSONS Citizenship, deprival by conviction..........................................................................477 Residence, effect of absence in military service....................................................478
PHARMACISTS See Professions, Businesses and Trades
PHYSICIANS License may not be withheld until one year internship completed....................491
PINBALL MACHINES Not prohibited, when..................................................................................................104
POULTRY See Agriculture
PRIMARY ELECTIONS See Elections
PRISONS AND PRISONERS Board of Corrections: Correctional institutions, establishment..............................................................430 Georgia Training School, transfer to..................................................................429 Insane convict: Fugitive, duty to return....................................................................................427 Milledgeville State Hospital, transfer to......................................................428 Sanity examination, transfer for....................................................................434 Juvenile courts, no authority over persons confined for................................430 Medical treatment: County providing, no liability for..................................................................433 Parolee, person providing should be reimbursed..........................................441

694
Page
Venereal disease, duty to require....................................................................426 Personal effects, may not authorize inspection................................................437 Recorder's court, no jurisdiction over convictees............................................435 State highway camps, establishment..................................................................424 Tort liability ..........................................................................................................399 Convict labor: County hospital authority, use............................................................................422 Municipal school, use in erecting..........................................................................423 State roads, use of felony convicts....................................................................421 Prison trial board: Confiscation of money derived from violation of prison rules........................432 Property rights, may not adjudicate..................................................................432
PROFESSIONS, BUSINESSES AND TRADES Barbers and hairdressers: Examination, requiring 18 months study or training to take......................480 Practice as barber while training as beautician authorized..........................479 Trainees, limiting number to one under each barber........................................480 Businesses: Veteran's license exemptions: Employees, number of, not limited..................................................................486 Income tax liability, 5 year exemption not affected....................................485 Regulatory fee on wholesale fish dealers, not applicable.....,......................484 Revocation, grounds ..........................................................................................483 Chiropractors: Colonic irrigations, may not administer............................................................488 Educational qualifications ....................................................................................487 Electrical treatments, may not administer...........................................,............488 Vitamins, may not prescribe..............................,...................................................488 Dentists: Board: Meeting without notice, when valid................................................................489 Member, Senate adjourning without confirming appointment................489 License, grant by reciprocity................................................................................489 Embalmers, board may rate schools upon discontinuance of statutory rating authority ......................................................................................................490 Engineers and surveyors, board may not contribute to council for professional development ....................................................................................491 Medical practitioners, board may not withhold license until one year internship completed ..............................................................................................491 Ministers, State license not required........................................................................493 Nurses, granting of advanced credit by board......................................................494
Optometrisw: Board: Equipment and personnel, may not prescribe................................................502 Expenses, contributions toward, may not encourage..................................504 Expenses limited by fees ..................................................................................504 Meetings, special, may be held........................................................................506 Practice, authority to control............................................................................503

695
Page
State association, requiring membership in..................................................508 Unprofessional conduct, how determined........................................................500 Contact lenses, fitting, constitutes practice......................................................495
License: Applicant, residence requirements....................................................................500 Comity, rules for granting................................................................................500 Lapsed, requirements for reinstatement........................................................496 Recording in county of practice........................................................................507 Renewal, active practice may be required....................................................496 Unprofessional conduct: Advertising, how determined........................................................................500 Code of ethics violation, how determined....................................................504
Pharmacists: Educational qualifications ....................................................................................509 Mineral oil, sale does not require license............................................................508
Real estate brokers and salesmen: Concealing from seller amount paid by purchaser prohibited......................510 License, when required of corporation subdividing property......................512 Real Estate Commission: Educational programs, authority to sponsor..................................................513 Interstate meetings, authority to attend........................................................513 Retaining amount received above net listing prohibited.....,..........................510
Tree surgery, state license not required................................................................326 Veterinarians, examination not required, when....................................................515
PUBLIC DEFENSE Active duty, definition................................................................................................516 Adjutant General: Age limitation ...............................................:........................................................517 Appointment of ineligible person, effect............................................................517 Commander of State Guard disqualified............................................................517 Governor's Horse Guard, property belongs to the State....................................51S National Guard, appropriations not used for canteen to sell beer.................... 53
PUBLIC FINANCE See Appropriations Bonds, refunding does not require surrender of issues not subject to call......519
PUBLIC HEALTH Hospital Advisory Committee, designation under Hill-Burton Act................526 Mental hygiene program, delegation of administration......................................650 State Board of Health: Appropriations, use to pay expenses of Hospital Advisory Committee......523 Children's "dentistry, contract for use of Federal funds in training............529
Director: Employment of former, to assist present........................................................522 Inactive status, may not compensate..............................................................522 Registrars, appointment ....................................................................................534
Hospital program, proper agency to administer................................................526

696
Page
Hospitals: Contract with F.W.A. for use by the State................................................524 Deed containing restrictions, authority to accept........................................527
Preservation of life and health, authority over................................................322 Tuberculosis, quarantine and control..................................................................530 Vital Statistics: Birth registration of adopted children..............................................................533 Registrars, appointment ........................................................................................534
PUBLIC OFFICERS See specific titles Liability for loss of public funds ............................................................................535 Quarterly statement to Comptroller General not required................................536
PUBLIC PROPERTY Arresting power of watchmen..................................................................................539 Henry Grady Hotel: Governor may not require grant of priority to veterans................................541 State may not grant permit for taxi stand........................................................542 Highway easement: Conveyance ....... ,......................................................................................................547 Public property ......................................................................................................545 Insurance, authority to provide................................................................................542 Mansion, Governor may not lease or rent..............................................................540 Marsh lands, authority to lease or sell.................................................................... 543 State Capitol grounds, Governor may not deed strip to city............................544 Unserviceable, Governor may grant easement over............................................549
PUBLIC REVENUE Ad valorem tax: Assessment, county governing authorities may not reduce..........................556 County Hospital Authority may not levy........................................................554 County-line property, where returned................................................................ 556 Digest, correction of mistakes............................................................................ 552 Granite deposits, how assessed............................................................................554 Industry, exemption for additions or enlargements........................................557 Merchandise, where taxable................................................................................558 Payment: County governing authorities may not relieve.................................,.......... 556 Proportionate, releases tax lien......................................................................551 Valuation, increase by tax receiver, when........................................................553 Capital stock tax, deduction of value of realty by bank.................................... 591 Homestead exemption: Absence in armed forces not a waiver................................................................561 Application: Lost or misplaced, remedy................................................................................562 Time for filing may not be extended................................................................562 Bonds, does not exempt from tax to retire........................................................560 Farmer, eligibility when occupying 50o/o as a dwelling................................563 Farming not a commercial enterprise................................................................563

697
Page
Income Tax: Assessment: Time for making..................................................................................................569 Time for reopening............................................................................................569 Deduction, disallowance for violating Code 92-3205........................................571 Pay, penalty for failure to....................................................................................564 Prosecution for violation: Attorney General may assist, when................................................................564 Evidence necessary to convict..........................................................................564 Return: Failure to file, penalty........................................................................................564 Federal, Commissioner may examine..............................................................563
Intangible Tax: Bank may be required to report ownership of intangibles............................575 Hospital deriving income from pay patients not exempt................................574
Motor Fuel Tax: Bond, not required of retailers..............................................................................578 Licensed retail dealer, definition........................................................................578 Municipal corporation not exempt........................................................................583 Purchaser from \V.A.A. not exempt..................................................................576
Refunds: Distributor operating retail outlet..................................................................578 Retailers, not paid until funds appropriated................................................580
State agency, not exempt......................................................................................576 W.A.A. exempt ......................................................................................................576 Motor Vehicle license tax, veterans not exempt....................................................583 Occupation tax: Chain store, applicable to person leasing counter space................................586 Electrical contractors, municipal employee not liable....................................592
Electrical engines: Definition ...........................................................................................................587 Manufacturers and agents selling..................................................................587
Engineers, liability when employed for a salary..............................................588 Medical practitioner, liability of non-resident to practice in Georgia........584 Manufacturer, non-resident, may be liable as wholesaler............................590
Municipal: Authority to levy ................................................................................................592 Insurance agent ..................................................................................................584 Payment to State does not exempt..................................................................592
Pistol cartridges, law governing dealers..........................................................589 Rifle cartridges, law governing dealers............................................................589 State, payment does not exempt from municipal..............................................592 Wholesaler, non-resident manufacturer may be liable as................................590
Poll Tax: See Elections State Revenue Commissioner:
Delegation of duty to collect fees........................................................................ 20 Executions against railroads and power companies for county school
taxes, authority to issue......-..............................................................................594

698
Page
Tax collectors: Commissions: Collections above 90% of net digest, effect of special act............................595 School maintenance and bond taxes................................................................597 Digest, authority to correct....................................................................................595 Estoppel not created by collecting less than amount due................................552 School maintenance tax, levies............................................................................178 Vacancy, how filled......................................................................................:......... 83
PUBLIC SAFETY Department of Public Safety: Advertising and promoting safe driving............................................................601 Building Safety Council regulations, approval................................................364 Speed limits, fixing, not unconstitutional..........................................................408 Stolen property, disposition..................................................................................602 Tort, no liability for operation of patrol cars..................................................603 Drivers licenses: Chauffeurs, when required of truck drivers....................................................60S Resident may not use out of state license..........................................................609 Suspension or revocation: Appeal after hearing does not supersede........................................................611 Demand for hearing supersedes......................................................................611 Disqualification after three revocations for cause........................................611 Foreign judgment, unsatisfied, not grounds................................................610 Hearing, agent authorized by Director may hold........................................ 607 Judge of convicting court may not prohibit....................................................613 Georgia Bureau of Investigation, personnel included in salary increase........599 Georgia State Patrol, authority to execute warrants........................................604 Headlights, requirements ....................~.....................................................................405 Motor Vehicle Safety Responsibility Act: Liability insurance, Director may not require ten days notice of cancellation ..........................................................................................................605 Rules and regulations, authority to make..........................................................605
PUBLIC SCHOOLS See Education
PUBLIC SERVICE COMMISSION ~fotor carriers: Cancelled certificate, reinstatement....................................................................403 Free tags for pick-up and delivery service in municipality............................401 Reciprocal carriers, cost of issuing tags............................................................405
QUARANTINE See State Department of Entomology; Public Health
RAILROADS Automatic firebox law, enforcement........................................................................327 Executions for county school taxes, authority to issue........................................594 Grade crossing elimination: Agreement as to cost.............................................................................................. 616

69~
Page
Amount required to pay in one year limited....................................................616 May be required to pay fifty per cent..............................................................6113 Spark arresters not required....................................................................................327
REAL ESTATE BROKERS AND SALESMEN See Professions, Businesses and Trades
ROADS, BRIDGES AND FERRIES Cor.tract3, counties may not bid..............................................................................615 Easement: Authority to sell......................................................................................................517 Erecting poles along.............................................................................................. 547 Public property ........................................................................................................545 Grade crossing elimination: Agreement as to cost..............................................................................................61S Amount railroad required to pay in one year limited....................................6Hi Railroad may be required to pay fifty percent................................................616 State Highway Department: Appropriations: Act of 1946, use....................................................................................................628 Financial advisor, not used to pay..................................................................300 Matching Federal funds, not used for 100% State project........................622 Sinking fund, not used for road construction................................................622 Contract: Funds must be available before execution....................................................620 Maintenance by county with convict labor of road constructed with Federal funds ..................................................................................................624 Payment not made until approved funds transferred to Department........620 Convict labor, use...................................................................................................421 Director: Easement, authority to convey..........................................................................547 Equalization of funds, duties............................................................................637 Official matters, signs........................................................................................619 Road building and repairing, distribution......................................................637 Roadside parks, supervision..................................................................................333 State Highway Commission: Equalization of funds, duties advisory............................................................637 Expenses for attending contract letting........................................................628 Per diem for attending contract letting........................................................628 Road building and repairing, distribution, duties advisory........................637 Tort liability; negligence of employee................................................................632 Treasurer, employment to coordinate efforts of Director and Commission ..........................................................................................................626
SECRETARY OF STATE See Executive Department
SENTENCES See Criminal Procedure
SHERIFFS See Courts

700
Page
SHIPPING AND SEAMEN See State Ports Authority
SLOT MACHINES Prohibited ....................................................................................................................104
SMALL LOAN COMPANIES Regulation by Superintendent of Banks................................................................ 47
SOCIAL WELFARE County board of public welfare, county board of education member ineligible ..................................................................................................................648 Old age assistance, employment by the State does not disqualify....................645 State Board of Public Welfare: Appointment, no confirmation required.......................................................... 646 County board of education member ineligible........................................................ 648 Creation, constitutional amendment self-executing..........................................646 State Board of Social Security superseded........................................................ 646 State Department of Public Welfare: Federal funds, authority to receive and disburse............................................649 Mental hygiene program: Administration ....................................................................................................650 Delegation to State Health Department..........................................................650
STATE AUDITOR Prescribes forms for reports of county hospital authority....:........................... 65
STATE BOARD OF CORRECTIONS See Prisons and Prisoners
STATE BOARD OF EDUCATION See Education
STATE BOARD OF HEALTH See Public Health
STATE BOARD OF PARDONS AND PAROLES Attorney General may not advise whether conviction authorized....................442 Chairman, duties ........................................................................................................450 Commute, authority to, upon payment of fine....................................................446 Conditional pardons: Criminal Court of Fulton County may revoke, when......................................438 Revoked, unserved portion of sentence must be served....................................438 Guilt or innocence, may not determine from trial record....................................443 Minimum term, release after....................................................................................449 Release by mistake, enforcement of revoked parole............................................452 Reprieves: Authority to grant..................................................................................................444 Definition ................................................................................................................444 Sanity examination, when may order......................................................................434
STATE BOARD OF PUBLIC WELFARE See Social Welfare

701

Page

STATE DEPARTMENT OF CORRECTIONS See State Board of Pardons and Paroles

STATE DEPARTMENT OF ENTOMOLOGY

Bee disease law, enforcement.................................................................................... 5

Director:

Quarantine, authority to declare.......................................................................... 8

Rules and regulations, authority to make........................................................ 8

Quarantine:



Director may declare.............................................................................................. 8

Penalty for violating.............................................................................................. 8

Rules and regulations:

Director may make.................................................................................................. 8

Force and effect...................................................................................................... 8

STATE DEPARTMENT OF PUBLIC WELFARE See Social Welfare

STATE DEPARTMENT OF VETERAN'S SERVICE See also Veterans Education Council Authority over veteran's affairs............................................................................462 Educational affairs of veterans, relieved of responsibility................................464 Education Division: Administration ........................................................................................................453 Expansion, authority to direct............................................................................453 Recommendations of Education Council, effect................................................453 Regulations of the Board, effect........................................................................453 Federal funds, authority to receive........................................................................462 State Board of Veteran's Service: Director, removal of, authority to determine what constitutes cause............457 Hearing, compelling witness to attend................................................................457 Meetings, place of holding....................................................................................453 Members: Expenses ..............................................................................................................453 Ineligible for other State offices......................................................................476 Regulations, authority to adopt..........................................................................453

STATE DEPOSITORIES State funds, disposition by county tax collector..................................................651

STATE GAME AND FISH COMMISSION See Game and Fish

STATE GUARD See Public Defense

STATE HIGHWAY DEPARTMENT See Roads, Bridges and Ferries

STATE OF GEORGIA Agencies not exempt from motor fuel tax............................................................576

702
Page
Jurisdiction: Cession to United States........................................................................................ 49 Chickamauga-Chattanooga National Military Park, violation of game and fish laws ...................................................................................................... 51 Marietta Army Air Field, sale of beer................................................................ 53
Warm Springs Memorial Commission, agency....................................................550
STATE PARKS See Forestry and Geology
STATE PORTS AUTHORITY Appropriation, continuing, invalid..........................................................................645 Docks, may not contract for State to pay cost of maintenance........................638 Refunding bonds, may not be secured by ,V, & A. rentals................................ 638 Remedy to test authority to secure bonds by W. & A. rentals........................642
STATE REVENUE COMMISSIONER See Public Revenue
STATE SUPERINTENDENT OF SCHOOLS See Education
STATE TREASURER May honor warrant payable to officer by title only............................................315
STOCK AND STOCKHOLDERS See Banks and Banking
SUPERIOR COURT CLERKS See Courts
SUPERIOR COURTS Habeas Corpus writ may be made returnable to any county in circuit..........353
SUPERVISOR OF PURCHASES See Executive Department
SURVEYORS Board may not contribute to council for professional development................491
TAXATION See Public Revenue
TAX COLLECTORS See Public Revenue
TEACHERS RETIREMENT SYSTEM See Education
THANKSGIVING DAY Date of .......................................................................................................................... 34
TIME Municipality, adoption of other than official... ..................................................... 56 Official for the State.................................................................................................. 54

703
Page
TORTS Board of Corrections not liable................................................................................399 City board of education not liable..........................................................................220 Department of Public Safety not liable................................................................603 Mob and riot damage, municipal corporation not liable......................................415 State Game and Fish Commission enforcement officers, personal liability....342 State Highway Department, negligence of employee, not liable........................632 Vicious animals : Negligence presumed from injury........................................................................652 Permitting to run at large..................................................................................652
TRADE NAMES Corporation may use.........~ ........................................................................................652
TRADE SCHOOLS See Education
TRUSTS Charitable, trustees subject to equitable supervision..........................................653
UNEMPLOYMENT COMPENSATION County not liable........................................................................................................ 59 Employment Security Agency, administration of State employment offices ........................................................................................................................358 Interstate claims, agreements with other States................................................360
UNIVERSITY SYSTEM OF GEORGIA See Education
VETERANS See also State Department of Veterans Service; Veterans Education Council Certificate of service, recording..............................................................................100 Contracts, permitting minors to make, not unconstitutional............................471 Elections: Registration of persons recently released from military service................267 Soldiers Vote Law, expiration date......................................................................278 Henry Grady Hotel, Governor may not require grant of priority.................... 541 License exemptions: Employees, number not limited............................................................................486 Income tax liability, effect....................................................................................485 Motor vehicle license tax, not applicable............................................................ 583 Revocation, grounds ..............................................................................................483 Wholesale fish dealers regulatory fee, not applicable....................................484 1\ierit system, preferences..........................................................................................469 Trade schools for veterans: Authority to establish............................................................................................195 Common school funds not used............................................ .-.................................139 Tax exemption ........................................................................................................195 Workmen's Compensation: Instructors are employees..................................................................................658 Pupils are not employees....................................................................................658

'704
Page
VETERANS EDUCATION COUNCIL Appointments, effective date....................................................................................473 Director, eligibility of member of General Assembly........................................350 Employees, applicability of merit system..............................................................474 Federal funds, designation of Department of Vocational Education to receive ..................................................................................................................199 Member, eligibility of member of General Assembly..........................................349 Validity of Sections 16, 17 and 18 of Act creating............................................474 Veteran's educational affairs, responsibility for................................................464
VETERINARIANS Examination not required, when..............................................................................515
VITAL STATISTICS See Public Health
VOCATIONAL EDUCATION See Education
WARM SPRINGS MEMORIAL COMMISSION Agency of the State..................................................................................................550 Liability insurance, may not carry........................................................................550 Tort liability ................................................................................................................550 Workmen's compensation act, employees under....................................................550
WATERS AND WATERCOURSES Fish, using destructive substance to kill, penalty................................................105 Floating sawdust in streams, penalty....................................................................105 Pollution of non-navigable, penalty........................................................................105
WEIGHTS AND MEASURES See Agriculture
WINE See Intoxicating Liquors
WORKMEN'S COMPENSATION Chairman of State Board, duties .............................................................................. 659 County: Employees, insuring one group to exclusion of another................................ 654 Employer .................................................................................................................. 654 State prison, inmate not an employee......................................................................656 State trade and vocational school: Instructors are employees......................................................................................658 Pupils are not employees......................................................................................658 Warm Springs Memorial Commission, employees covered..................................550
ZONING Constitutional provision not self-executing............................................................416