Opinions of the Attorney General 1950-1951

OPINIONS
of
THE ATTORNEY GENERAL
1950-1951
EUGENE COOK
Attorney General
w. DAN GREER
and. ROBERT D. HEIDRICK
Compilers
Printed by BOWEN PRESS, INC.
DECATUR, GA.

The Honorable Herman E. Talmadge Governor, State of Georgia Atlanta, Georgia
Dear Governor Talmadge: I have the honor to present herewith for
your consideration the report and opinions of the Attorney General of Georgia for 1950-51.
As head of the Department of Law, I wish to publicly state to you and to the readers of this report my sincere appreciation for the invaluable assistance rendered by my staff, without which the successful operation of this Department would have been impossible.
Sincerely,
EUGENE COOK The Attorney General
II

ATTORNEYS GENERAL
HENRY P. FARRER..---------------------------------------------------------------1868-1872 N. J. HAMMOND------------------------------------------------------------------------1872-1877 ROBERT N. ELY__________________________________________________________________________1877-1880 CLIFFORD L. ANDERSON______________________________________________________1880-1890 GEORGE N. LESTER..----------------------------------------------------------------1890-1891 W. A. LITTLE------------------------------------------------------------------------------1891-1892 J. M. TERRELL----------------------------------------------------------------------------1892-1902 BOYKIN WRIGHT ----------------------------------------------------------------------1902-1902 JOHN C. HART----------------------------------------------------------------------------1902-1910 HEWLETT A. HALL__________________________________________________________________1910-1911 THOS. S. FELDER.......---------------------------------------------------------------1911-1914 WARREN GRICE ------------------------------------------------------------------------1914-1915 CLIFFORD WALKER ---------------------------------------------------------------1915-1920 R. A. DENNY.----------------------------------------------------------------------------1920-1921 GEORGE M. NAPIER.---------------------------------------------------------------1921-1932 LAWRENCE S. CAMP.---------------------------------------------------------------1932-1932 M. J. YEOM~NS__________________________________________________________________________1933-1939 ELLIS G. ARNALL-------------------------------------------------------------------1939-1943 GRADY HEAD ----------------------------------------------------------------------------1943-1945 EUGENE COOK --------------------------------------------------------------------------1945-
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PREFACE
In preparing this volume for publication, it has been my purpose to accomplish two objectives. First, since the Attorney General is called upon to render opinions on many doubtful questions not previously adjudicated by the Courts, and since official opinions so rendered bind and protect officers of the State Government acting pursuant thereto in their official capacities until such time as those opinions are modified or set asfde by the Courts, it is believed that publication of these opinions in ready reference form will serve as an aid to public officials, attorneys, and civic-minded citizens of this State in finding authoritative comment on subjects frequently otherwise unavailable. With this view in mind, the 932 opinions given by the Attorney General in 1950-51 have been reviewed and edited, and some 420 have been selected as being of sufficient interest and importance to warrant their publication herein.
Secondly, it is my conviction that the citizens of this State, lawyers and laymen alike, are entitled to a report on the activities and operations of this public office. It has been my purpose and desire to furnish that also.
There will, undoubtedly, be some to whom the results here appearing will be unsatisfactory. To me, and the members of my staff, this compilation represents two years of labor in the public interest, striving always to perform as perfectly as possible the duties and responsibilities imposed upon and entrusted to me by the people of Georgia.
THE ATTORNEY GENERAL
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EUGENE COOK Attorney General

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TABLE OF CONTENTS Part I. Report of the State Department of Law
for 1950-1951 ---------------------------------------------------- IX Part II. Opinions of the Attorney General, 1950__________ I Part III. Opinions of the Attorney General, 195L_________ 233 Part IV. Index to Opinions______________________________________________ 445
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PART I Report of the Operations of The State Department of Law for
1950-1951
IX

INDEX TO PART I
Page Register of the Department of Law, 1950-1951..________________________ XIII
Duties and Powers of the Attorney General and the Department of Law--------------------------------------------------------- XV
Important Cases Handled in 1950-51....__________________________________________ XIX

A. Habeas Corpus Cases....-------------------------------------------- 1. Extradition --------------------------------------------------------2. Georgia Cases ----------------------------------------"--

XIX XIX XIX

B. County Unit Cases----------------------------------------- XXI C. Segregation Cases.............................................................. XXII

D. Revenue Cases------------------------------------------ XXIII:.... 1. Tar Exemptions ----------------------------------------- XXIII 2. Excise Liquor Tax------------------------------------ XXV 3. Income Tax ------------------------------------------ XXVI 4. Bankruptcy ----------------------------------------- XXVI
E. Administrative Law ---------------------- XXVI 1. Georgia Public Service Commission.......................... XXVI 2. Milk Control Board...------------------------------------------------XXVIII 3. State Superintendent of Banks..........-----------------XXVIII
List of Appellate Court Cases, 1950-51..______________________________________ XXX

Summary of Cases, Opinions, and Bills Prepared for General Assembly during 1950-51.........-----------------------XXXIV

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(Left to Right) First Row: Rice, Hartley, Houston, Attorney General Cook, Blackshear, Brooks, Parham. Second Row: Stow, Simmons, Sizemore, Greene, Gibson, McKibben, Saffold. Third Ro.w: Sims, Greer, Gambrell, Hicks, Adams, Clements, Edwards. Fo.urth Row: Dyer, Stephenson, Monroe, Reynolds, Jackson, Briggs.

REGISTER OF THE DEPARTMENT OF LAW
1950-1951
THE ATTORNEY GENERAL Eugene Cook
ASSISTANT ATTORNEYS GENERAL Addleton, Robert L. Blackshear, M. H., Jr., Deputy Assistant Attorney General Carney, Hugh C. *Dorsey, Cam D., Jr. Gambrell, Robert H. Grice, J. T., Deputy Assistant Attorney General Hartley, A. J., Deputy Assistant Attorney General Houston, John C. Parham, J. R. *Peabody, M. H. Rice, W. Vaughn Simmons, H. Grady Sims, George E., Jr. Sizemore, Lamar W. Stow, Frank B. *Williams, T. V., Sr.
DEPUTY DIRECTOR OF BILL DRAFTING UNIT Edwards, Frank H.
LAW CLERKS *Andrews, Robert E. *Dorsey, Edward E. Goddard, John H. *Goodwin, Bland, Jr. *Hedrick, Robert D. *Hicks, Robert E. Jackson, Rubye G.
SECRETARIES *Balkcom, Betty B. Briggs, Helen P. Brooks, Nelle C. Clements, Dorothy C. *Duke, Ruby R. Gibson, Elizabeth *Giles, Mary W.
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*Griffin, Frances *Haughey, Dorothy Monroe, Rilla H. McKibben, Josephine M. Nelson, Ann Reynolds, Hallie P. Saffold, Mildred OTHER PERSONNEL Cook, Julia-Clerk, Receptionist Dyer, Alice-Receptionist *Massey, Abit-Executive Secretary Stephenson, Floy C.-Treasurer, Purchasing Agent *Indicates personnel no longer affiliated.
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DUTIES AND POWERS OF THE ATTORNEY GENERAL
AND THE DEPARTMENT OF LAW
The office of Attorney General, recognized as an integral part of the State Government since the earliest days of statehood, has grown steadily in importance throughout the years. The growth and development of the State agriculturally, industrially and financially has required that the officers of the State be well informed in matters of law in order to decide with wisdom the policies to be pursued in order to foster and protect this growth. It has thus been inevitable that the duties and responsibilities of the Attorney General should multiply as this task devolved upon him.
Perhaps the greatest expansion in the office of Attorney General has occurred since the Reorganization Act of 1931, which created the Department of Law with the Attorney General as its chief. Prior to that time each department of the State Government employed such counsel as it needed, and the duties of the Attorney General were limited to those few specified in the Constitution and laws.
The Department of Law, as presently organized, was created by the Act of the General Assembly of 1943 and later amendments, which superseded in great part the Reorganization Act of 1931, under which the Department was originally created. These acts are codified as Chapter 16 of Title 40 of the Georgia Code Annotated. Provision is made therein that the Attorney General shall be the head of the Department of Law, which is 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 most familiar functions performed by the Attorney General and the Department of Law consist of representing the various State agencies or officers in litigation arising from their official activities, rendering to the Governor or State departmental heads official opinions on questions of law propounded by them, representing the State in all capital felony cases in the Supreme Court, and drawing contracts and counseling with the various State officials. However, the Code imposes some forty-five specific duties upon the Attorney General, such as performing as a member of a great many commissions and administrative bodies, approving certain bonds and a variety of other duties.
In addition, the Department of Law answers as fully and adequately as time permits all inquiries addressed to it by county or municipal authorities, civic organizations, military establishments, information and research bureaus, and other inquiries of similar nature, regard-
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ing provisions of Georgia law. Opinions so delivered are not required by law, are unofficial and bind no person or agency. However, it is believed that the dissemination of such information is a necessary service not otherwise obtainable, since Georgia has no central information bureau, and that the Department of Law should continue to render this courtesy to the fullest extent which performance of its official duties will permit.
In general, it might be said that the Attorney General perfol'ms such functions for the State as a lawyer usually performs for his client. The volume and extent of those activities may be roughly understood from the figures herein contained.
In addition to the duties above enumerated, the Department of Law provides a Bill Drafting service for members of the General Assembly. Also, a portion of the personnel of the Department are organized as a Litigation Division, which supervises and controls the majority of litigation handled by the Department. For facility of discussion, these two organizations within the Department will be treated separately.
DRAFTING OF LEGISLATION
The State Law Department has always, to a certain extent, drafted legislation for the members of the General Assembly. This work, up until 1951, was performed as a service in order that legislators might have specialized aid in the preparation of proposed legislation. In 1948, the Attorney General established, on an unofficial basis, a Bill Drafting Unit as a part of the State Law Department. From its beginning, as a comparatively small endeavor, it grew rapidly and was so successful and met with such great response from members of the Legislature that the General Assembly at the 1951 Session passed an Act creating the Bill Drafting Unit within the State Law Department under the direction of the Attorney General who was named Director.
This arrangement makes it possible for bill drafting to be done by specially trained attorneys under the direction of the Attorney General and enables members of the General Assembly to have their bills prepared, checked and ready for introduction in advance of their convening. The difficulties incident to the drafting and enactment of complicated legislation calls for legal knowledge of a highly technical nature. By developing experts on this subject in this Unit, even though no claim to infallibility is made, the possibility of legislation being declared unconstitutional by the courts has been greatly reduced. Some personnel of the Unit work on a full-time annual basis rather than only during a Session of the General Assembly. Of
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course, the staff is greatly increased for a few months before and during the sessions of the Legislature. The Act creating the Bill Drafting Unit provides that research may be made on legislation and related fields and the major portion of this work is carried on between sessions. The full-time members of the Unit also perform all other types of work incident to the functioning of the State Law Department.
The Bill Drafting Unit prepared approximately 650 bills and resolutions for the 1952 Session of the General Assembly which was the first session at which the Unit operated on an official statutory basis. A great number of these were prepared and ready for introduction before the convening of the session in January. However, the majority were drafted while the session was in progress. The number of bills and resolutions which will be prepared will probably increase with each session since the members of the General Assembly will more than likely utilize the services of the Bill Drafting Unit to ::t greater extent in the future.
LITIGATION
As stated above, in March, 1951, a portion of the Department's personnel were organized into a Litigation Division. The Attorney General has adopted this method of organization in order to most effectively perform the court room duties imposed upon him by Article VI, Section X, Paragraph II of the Georgia Constitution of 1945 and Chapter 16 of Title 40 of the Georgia Code Annotated. Briefly, these duties are to represent the State in all cases before the Supreme Court of the United States, in capital felony cases in the Supreme Court of Georgia, in trials beyond the limits of the State, in any civil or criminal case when required by the Governor, and in cases in which the Attorney General represents the various agencies or officers in controversies arising from the discharge of their official function.
It has been the purpose of the Attorney General to insure a uniform quality of representation. It is a physical impossibility for the Attorney General personally to prepare or try all of the State's cases or closely supervise trial and preparation of all of these cases. Thus, the Litigation Division is employed by the Attorney General as his instrument of control and supervision of the State's major litigation The purpose of the organization of such a division may be said to be threefold: First, for efficiency and precision of operation; second, as a control center and clearinghouse for all the court work of the Department; and third, as a device for maintaining a high quality of legal work by combining the talent and thinking of all members of the Attorney General's staff. Dockets and records of all trial work
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are maintained in this division, and it is responsible to him for the proper preparation and trial of the State's cases.
The acid test of the laws drafted by the Law Department and enacted by the Legislature, the opinions rendered to the Governor, and the advice and counsel furnished to the Executive Departments of the State comes in the Court. Within recent years the volume of court cases, for which the Attorney General is responsible, has increased in very substantial manner. All of these cases are important, some involve millions of dollars, others involve constitutional principles affecting in intimate fashion every person in the State. In other cases the very honor and dignity of the State of Georgia are drawn into issue. The social order which is ours by history and tradition is now and in the future will continue to be the subject of cases in Court.
Even before tax revision legislation and the financing of the Minimum Foundation for Education, increased State revenue and the enlargement of functions and services of the various branches of government was reflected in sharply increased volume of litigation. With these additional legislative events, the number of court cases may be expected to grow still further. This representation of the State's interest in court pits the Attorney General and members of his staff against the finest lawyers of the State and Nation.
The State is entitled to the highest quality court room representation that it may possibly obtain. In addition to other professional skills, the trying of cases requires intimate knowledge of the rules of court, the rules of evidence, pleading and procedure, and expertness in the employment of these skills. This knowledge and ability must extend beyond Georgia's borders as the State's litigation is conducted in many courts, State and Federal. At one time within the period of this report, the State had cases pending in the Supreme Court of the United States, the Federal Circuit Courts of Appeals at Philadelphia, New Orleans, Chicago, St. Louis and San Francisco, in the State Courts of New York and New Jersey and in all three United States Court Districts of Georgia and other states.
As examples of the activity of the Attorney General and the Department of Law in the field of court room work, during the years of 1950 and 1951, the attention of the reader is urged to consideration of some of the major cases handled within that period by the office of the Attorney General.
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IMPORTANT CASES HANDLED IN 1950-1951
A. HABEAS CORPUS CASES.
1. EXTRADITION:
During the last two years, the efforts of the Attorney General in the field of extradition have been directed toward the establishment in the body of Federal law of the basic proposition that all fugitives before being entitled to writs of habeas corpus in the Federal forums outside Georgia must first exhaust the State remedies of Georgia, the demanding State. In Johnson v. Dye (175 F. 2d 250), the Third Circuit announced a doctrine to the effect that the remedies of the demanding State were not required to be exhausted. The United States Supreme Court reversed that decision summarily (338 U.S. 864; 338 U.S. 896; 341 U.S. 911). Since then, in the Eighth Circuit (Davis v. O'Connell, 185 F. 2d 513), the Ninth Circuit (Ross v. Middlebrooks, 88 F. Supp. 943, 188 F. 2d 308), and the Circuit of the District of Columbia (Johnson v. Matthews, 182 F. 2d 677), the Attorney General has clearly established in those Circuits his original proposition that the State remedies of the demanding State must be exhausted before a writ of habeas corpus may be maintained in the Federal forum. In each of these three cases, certiorari was denied by the United States Supreme Court (Davis v. O'Connell, 341 U.S. 941; Middlebrooks v. Ross, 342 U.S. 862; Johnson v. Matthews, 340 U.S. 828). The case of Jackson v. Ruthazer (181 F. 2d 588) was decided by the Second Circuit not to require application or rejection of the Johnson v. Dye doctrine, since in the Jackson case petitioner had received a full and fair trial in the asylum state, and the state court there had decided the case against him on the facts. This position of the Second Circuit Court of Appeals was sustained when the Supreme Court of the United States denied certiorari in the case (Jackson v. Ruthazer, 339 U.S. 980).
In other cases tried in the State courts of the asylum State to which fugitives from Georgia justice have escaped, the Attorney General has been sustained on the proposition that it is improper for State courts on writs of habeas corpus, in extradition eases, to inquire into any matter other than those which are raised by the requisition papers, it being his contention that the judgment of one State and the dignity and integrity of State sovereignty must be given full faith, credit, and equal dignity by every other State.
2. GEORGIA CASES:
Habeas corpus proceedings in the State courts of Georgia have been used in a number of cases by prisoners convicted and sentenced to
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death as a means of attempting to escape execution of the sentences imposed. In the cases of Solesbee v. Balkcom (205 Ga. 122, 339 U.S. 9, 207 Ga. 352,208 Ga. 121) and McLendon vs. Balkcom (207 Ga. 100), the writ was sought by prisoners who alleged that they had become insane following their respective convictions, that Code Section 27~ 2602 providing for request of postponement to the Governor in such cases did not afford an adequate legal remedy, and the execution of the sentence imposed upon them in these circumstances would violate the due process clauses of the State and Federal Constitutions. The Solesbee case was carried to the Supreme Court of the United States, and the judgment of the Georgia Supreme Court denying the writ was affirmed. The McLendon case was not appealed beyond the de~ cision of the Georgia Supreme Court, which likewise denied the writ.
The case of McLendon v. Balkcom, supra, also bore a feature similar to the question decided by the Supreme Court of Georgia and sustained by the Supreme Court of the United States in the case of Wallace v. Foster (206 Ga. 561, 340 U.S. 815). In both cases, the Court pointed out that the writ of habeas corpus can not be used as a substitute for a writ of error to correct errors allegedly committed at the trial. Habeas corpus is appropriate only when the trial court judgment is absolutely void for some reason, such as lack of jurisdiction, and not where merely erroneous.
Likewise, the case of McLendon v. Balkcom, supra, contained a question identical to that the same petitioner had raised in mandamus proceedings against a member of the Pardon and Parole Board in the case of MeLendon v. Wilburn (206 Ga. 646). In both instances, the contention of the petitioner that the member challenged was ineligible to sit as a member of the Board by virtue of his.engagement in the business of farming and banking, contrary to the statute prohibiting members of the Board from engaging in other business, was rejected by the Supreme Court of Georgia because the statute cited did not provide for forfeiture of office in cases of violation, nor did the petitioner show prejudice by the failure of that member t(;) resign. In still a third action, McLendon v. Warren (208 Ga. 229), the prisoner brought a petition for habeas corpus against the Director of the State Board of Corrections. The petition was brought in Wayne County, the county of the Director's residence, although the prisoner was being detained in the State prison in Tattnall County. The Supreme Court of Georgia held that the case was controlled by the case of McBurnett v. Warren (208 Ga. 225) previously decided at the same term of court, which held that a habeas corpus petition must be filed in the county wherein the prisoner is being detained and against the person having the actual physical custody and control of the prisoner.
McBurnett had previously instituted habeas corpus proceedings
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against the warden of the State Prison (McBurnett v. Balkcom, 207 Ga. 452), alleging that his detention was illegal because the time set for execution of his sentence passed while he was engaged in appeals for clemency, and that an order passed by the trial judge fixing a new date for its execution was void because the prisoner was not present at the trial court at the time it was passed, but was involuntarily detained at the State prison. The Supreme Court of Georgia held that the passage of this order had deprived the prisoner of no constitutional right, and that even if the order be considered void, it would not affect the validity of the original sentence, and a new date could be set for its execution with the prisoner present.
Finally, in the case of Patterson v. Balkcom (207 Ga. 511), the Supreme Court of Georgia held that a complaint that colored persons were systematically and arbitrarily excluded from jury lists in the county where the applicant, a person of color, was convicted, did not present a good ground for habeas corpus for the reason that an objection of that kind should have been presented in a proper way at trial and on failure to do so it was waived; and in the case of Bradford v. Mills (208 Ga. 198) the Court held that, the defendant, having pleaded guilty to an indictment returned by the grand jury after hearing testimony given by the defendant and his wife in investigation of a robbery charge, it was too late thereafter, in proceedings to secure his release by habeas corpus, to attack the indictment on ground that defendant's constitutional right against self-incrimination was violated.
As can be seen from this summary of cases, the Attorney General has participated in considerable litigation involving extradition and punishment of persons convicted of criminal offenses in Georgia. Despite the volume of cases, however, a survey of activities in this field during the years 1950 and 1951 reveals that the Attorney Genera,l's efforts therein have been largely of a successful nature.
B. COUNTY UNIT CASES.
The question of the use of the county unit system in Georgia primary elections is one of importance because of the continuing presence of this question in political campaigns throughout the State and the widespread publicity given to it. During the period covered by this report the Attorney General was called upon to defend the State's county unit election laws in three cases. All three were brought against the Chairman of the State Democratic Executive Committee.
The first, South v. Peters, was a suit brought in the United States District Court for the Northern District of Georgia to enjoin the adherence of the State Democratic Executive Committee to the county
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unit statute relating to party primaries, it being contended that the statute was unconstitutional because it reduced the value of petitioner's vote. The federal district court dismissed the petition (89 F. Supp. 672), and this action was affirmed on appeal to the United States Supreme Court (339 U.S. 276) which held in its opinion that federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state's geographical distribution of electoral strength among its political subdivisions.
The second case, Cox v. Peters, was a suit for damages allegedly suffered by petitioner because of the adherence of the Democratic Committee to the county unit statute, contended by him to be unconstitutional. The Supreme Court of Georgia (208 Ga. 498) held that party primaries were not "elections" within the meaning of that term as used in the statutory and constitutional provisions of Georgia law and, therefore, did not come within the protection of the Fourteenth and Fifteenth Amendments to the Federal Constitution. The appeal from this case was dismissed by the United States Supreme Court (342 U.S. 936).
The third case, Methvin v. Peters (208 Ga. 506), was a companion case to Cox v. Peters. It was decided by the Supreme Court of Georgia to be controlled by Cox v. Peters, and no appeal was taken in that case.
C. SEGREGATION CASES.
Although the segregation laws of the State of Georgia were not directly drawn in question in any case carried to the appellate courts during the years 1950 and 1951, the Attorney General did participate in one case in the United States Supreme Court and two cases in Federal District courts in which questions regarding state segregation laws were raised.
The Attorney General joined in a brief of amici curiae in the case of Sweatt v. Painter (339 U.S. 629) in which the segregation laws of the State of Texas were challenged. In that case, Sweatt, a Negro, was refused admission to the University of Texas Law School on the ground that substantially equivalent facilities were offered by a Texas law school open only to Negroes. Sweatt took his battle for admission to the University Law School to the courts, and the Supreme Court of the United States, refusing either to affirm or disaffirm the doctrine of Plessy v. Ferguson (163 U.S. 537) that separate but equal facilities for Negroes satisfy the requirements of the Thirteenth and Fourteenth Amendments, held unanimously that the equal protection clause required that Sweatt be admitted to the University of Texas Law School, since the school for Negroes did not afford equal
XXII

facilities. However, this conclusion was rested on grounds such as reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige of the school and other qualities incapable of objective measurement, which make it unlikely that it is practically possible for a state to establish a law school for Negroes which affords equal facilities.
The question of segregation was also brought up in the cases of Everett v. Irwin County Board of Education in the Federal District Court for the Middle District of Georgia and Holzendorf v. Clark in the Federal District Court for the Southern District of Georgia. However, the first case was dismissed for want of exhaustion of State remedies and the second was dismissed because of improper joinder of parties, so neither case reached the appellate court level and there is no reported decision of these cases.
D. REVENUE CASES.
1. TAX EXEMPTIONS:
During the years of 1950 and 1951, the Attorney General continued the prolonged and highly litigated Georgia Railroad case, involving the question of the power of the State Revenue Commissioner to assess and collect ad valorem taxes from the Georgia Railroad and Banking Company at a rate higher than specified in the charter of the company granted by the General Assembly in 1833. The company has contended that to tax it above the rate specified in the charter would be an unconstitutional impairment of contract by the State. The State has taken the position that the Constitution of 1945 removed the immunity from taxation previously enjoyed by the company. There has been much litigation on this question since 1945, but during the period covered by this report, the entire litigation has revolved around the case of Georgia Railroad and Banking Company v. Redwine.
The company filed suit in the Federal District Court for the Northern District of Georgia to enjoin the State Revenue Commissioner from assessing and collecting ad valorem taxes against the company in excess of that allowed by the company charter of 1833. The District Court dismissed the petition on the ground that it constituted a suit against the State to which the sovereign had not consented (85 F. Supp. 749). Appeal was taken to the Supreme Court of the United States, and that Court upon the motion of the Attorney General continued the case until such time as the company could assert its State remedies and seek appropriate relief in the State courts. (339 U.S. 901).
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Following the continuance in the United States Supreme Court, the company instituted proceedings in the Superior Court of Richmond County. These proceedings were in the nature of an appeal from the assessment made by the Revenue Commissioner. The Superior Court sustained the assessment and the case was carried before the Supreme Court of Georgia for review. That court, on its own motion, considered the question of jurisdiction, and four of the justices rendered the majority opinion of the Court that the Superior Court of Richmond County was without jurisdiction to hear the appeal from the Commissioner's assessment, and reversed the Superior Court decision. One of the justices, specially concurring in the reversal, dissented from the jurisdictional grounds upon which it was based by the majority, and two of the justices, including the Chief Justice, dissented without expressing any opinion on the merits. That is, the judgment was reversed by a vote of five to two, but the ground upon which the reversal was based was agreed to by only four of the seven justices. (208 Ga. 261). The Attorney General filed a motion for rehearing in the case, and the motion was denied.
After this, the company filed in the United States Supreme Court a motion to terminate the continuance and decide the appeal. This motion was resisted by the Attorney General on the grounds that the company had failed to exhaust its State remedies, but had attempted to assert only one. The motion was granted, argument was heard, and the Supreme Court decided the case, reversing the judgment of the District Court on the grounds that the case did not constitute a suit agamst the State and plain, speedy and efficient State remedies were not available. (342 U.S. 863). The District Court was instructed to assume jurisdiction and proceed to hear and determine the case. At the time this report is being written the case is pending before the District Court.
Another case involving tax immunity after the adoption of the 1945 Constitution was that of Redwine v. The Southern Company (206 Ga. 377). In that case, the Supreme Court of Georgia held that a foreign corporation domesticated in Georgia has the same powers, privileges and immunities as similar corporations created under the laws of this State, and the constitutional and statutory provisions for exemption from ad valorem taxes of common voting stock of a subsidiary corporation not doing business in this State, if at least ninety percent of such common voting stock is owned by a Georgia corporation with its principal place of business located in this State and acquired and held for the purpose of enabling the parent company to carry on some part of its established line of business through such subsidiary, are applicable to domesticated foreign corporations as fully and completely as it does to corporations created under the
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laws of this State. Although the case terminated contrary to the contentions of the Attorney General as counsel for the Department of Revenue, the decision set at rest a question of important constitutional interpretation.
2. EXCISE LIQUOR TAX:
In the case of Capitol Distributing Company v. Redwine (206 Ga. 477), Capitol brought suit to enjoin the State Revenue Commissioner from levying and collecting certain excise taxes against malt beverages and wines under an Act of the General Assembly of 1949. On appeal before the Supreme Court of Georgia, that Court affirmed the ruling of the trial court in sustaining the general demurrer of the Commissioner to the plaintiff's petition, and by so doing disposed of two constitutional questions raised by the petitioners. First, the Court ruled that the irregular manner of enactment of an Act of the General Assembly will not be considered by the Court when such irregularity is offered to be shown by photostatic copies of the bill and legislative journals, it being conclusively presumed that a duly enrolled act, properly signed and regular on its face, was regularly enacted. Secondly, the Court decided that the Act in question which taxed wine made from locally produced fruits at a lower rate than wine manufactured in Georgia from imported raw materials did not violate the due process or equal protection clause under the Fourteenth Amendment or burden interstate commerce, because the Twenty-first Amendment rendered the other provisions inoperative under the circumstances.
In the case of Georgia v. Wenger, the State sought, in the Federal District Court for the Eastern District of Illinois, to sue an Illinois resident as a principal conspirator to import into Georgia illegal liquor without paying the tax and warehouse charges as required by Georgia law. This case attracted much attention and was also the subject of considerable congressional inquiry by the Kefauver Committee. Georgia's legal position was that the Twenty-first Amendment in prohibiting importation had created a Federally enforceable right entitling Georgia to damages as a consequence of these illegal acts. Both the District Court (94 F. Supp. 976) and the Court of Appeals for the Seventh Circuit (187 F. 2d 285) concluded that there was no Federally enforceable cause of action created by the Twentyfirst amendment, and the State's petition for certiorari was denied by the Supreme Court of the United States (342 U.S. 822). However, this case did have the salutary effect of putting the spotlight on this type of illegal business and to a large extent is credited with having successfully reduced such illegal traffic.
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3. INCOME TAX:
The State of Georgia, by State Revenue Commissioner Redwine, made an income tax assessment against Dan River Mills, Inc., a corporation chartered in Virginia and having its principal office in Virginia with an office in Atlanta, from which agents solicited orders. All orders solicited were subject to approval at the home office, and contracts of purchase were made there, although orders or "offers to purchase" solicited by its agents were forwarded through the Atlanta office. Execution was issued and levied on the corporation, which filed an affidavit of illegality thereto. On appeal to the Supreme Court of Georgia on the issue thus formed, that Court held that the State had no right to tax the income of such a foreign corporation having no officers or directors, but only three salaried office employees, in the State, owning no property except a small amount of office equipment therein, and making no sales, collections, or adjustments of accounts in this State, since such a company was not "doing business" within the State within the meaning of Georgia income tax statutes. The State petitioned the United States Supreme Court for certiorari, but that writ was denied (340 U.S. 954).
Also respecting the State income tax laws, the cases of Redwine v. Arvaniti (83 Ga. App. 203) and Redwine v. Southern Wine Company (83 Ga. App. 206) were decided within the period of this report and sustained the State's position that the Statute of Limitations does not run against the State's right to examine the books, records and memorandums of a taxpayer.
4. BANKRUPTCY:
In the case of Redwine v. The Citizens and Southern National Bank, as Trustee for Douglas Mills, Inc., the State successfully established the principle that in bankruptcy, under Chapter X, Reorganization, the State is entitled to claim, as a matter of right, and have paid as costs of administration, those taxes which are found to be owing the State within one year after the filing of the petition for reorganization. The decisions of the District and Circuit Courts in this case are reported at 10 F. R. D. 465 and 189 F. 2d 328.
E. ADMINISTRATIVE LAW.
1. GEORGIA PUBLIC SERVICE COMMISSION:
During 1951 the Law Department appeared for the Public Service Commission in two major public utility rate cases before that body. These were Re Southern Bell Telephone and Telegraph Company (91 PUR NS 97) andRe Georgia Power Company (File No. 19314, Docket No. 206-U). Both hearings were held as a result of applications of
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these respective utilities for a general increase in rates for their services. The first hearing resulted in a modified rate increase for the
telephone company, about % of the amount sought, and the second
resulted in a denial of the power company's application, with leave to reopen the record on timely motion to show a substantial change of circumstance at a later date. Both cases represented victories for the Attorney General, since his activity before the Commission was to a large extent responsible for substantial savings to the people of the State, whose cost for obtaining telephone and electric power service would have been sharply advanced had the applications been granted. Proceedings of this nature involve a great volume of detailed and technical evidence and require specialized skills and talents of the attorneys as well as the members of the Commission and its staff. It is believed that the Department of Law, in assisting the Commission to properly analyze and assimilate the mass of technical information presented to it, made a real contribution toward the rendition by the Commission of decisions in these cases fair and just both to the utilities and to the general public of Georgia.
In the case of Western Union Telegraph Company v. State of Georgia (207 Ga. 675) the Attorney General was called upon to institute an action to recover penalty against the Western Union Telegraph Company for violation of Rule 2 of the Georgia Public Service Commission. The Telegraph Company had failed to obtain consent of the Commission as required by that rule before discontinuing the operation of a class 1-B office at Blakely, Georgia, and substituting a teletypewriter service there. The suit was brought for the penalty provided in Section 93-416 of the Georgia Code. The Supreme Court of Georgia, in deciding the case on review held that the Telegraph Company in obtaining a certificate of convenience from the Federal Communications Commission authorizing the change of service without obtaining the consent of the Georgia Public Service Commission, had not committed such an act as would constitute a lawful basis for recovery of the penalty provided, since Congress has power to control interstate commerce, as well as any intrastate commerce so interwoven as to be incidentally controlled, and it was the intent of Congress by the Communications Act of 1934 to give the Federal Communications Commission sole authority to grant or refuse the application of any telegraph company to reduce, change, or discontinue offices, agencies, or facilities which constitute an inseparable unit engaged in both interstate and intrastate wire communications. By this action, the Court declared Rule 2 of the Public Service Commission to be inapplicable to the Telegraph Company.
Another case involving the power of the Public Service Commission was that of Georgia Public Service Commission v. Smith Trans-
XXVII

fer Company (207 Ga. 658). In that case, Smith petitioned for an injunction to restrain the Commission from enforcing an order declaring that Smith did not have authority under its class "B" certificate of convenience and necessity to transport bulk asphalt in special tank equipment. The Commission's demurrer was overruled in the trial court, and the Supreme Court of Georgia affirmed this action of the trial court, holding the order to be invalid because it constituted an abuse of discretion by the Commission. The basis for the finding of abuse of discretion was found In the principle then announced by the Court that the Commission had no authority to interpret the certificates of convenience and necessity issued by it to common carriers, but must show a clear violation of regulations or statute.
2. MILK CONTROL BOARD:
A case involving the power and functions of another administrative body, the Milk Control Board, was that of Harris v. Duncan (208 Ga. 561). Duncan, the chairman of the Milk Control Board, sued Harris to enjoin him from selling milk in an established milk shed without a license and in violation of the price established by the Milk Control Board. The defendant's demurrer was overruled, and on appeal, the Georgia Supreme Court reversed that judgment, declaring that the Milk Control Law, in so far as it provided for the Board to fix the prices of milk, was in violation of the due process clause of the State Constitution. The decision of the Court, contrary to its decision in three cases previously before it in which the constitutionality of the Act was attacked and in conflict with decisions of the United States Supreme Court and other state courts, turned upon the finding by the Court that the milk industry was not an industry "affected with a public interest," and therefore was not subject to price regulations.
3. STATE SUPERINTENDENT OF BANKS:
Another question of administrative law was litigated in the case of Persons v. Lea (207 Ga. 384). Lea brought proceedings in the nature of mandamus against the State Superintendent of Banks to require him to issue a certificate approving a charter for the bank which he sought to establish. The trial court overruled the demurrers of the Superintendent of Banks and made the mandamus absolute. Appeal was made to the Supreme Court of Georgia on the ground that the trial court erred in overruling Ground 3 of the general demurrer, which read as follows:
"Defendant demurs generally to the petition as a whole and specially to each and every paragraph thereof, for the reason that the same seeks to substitute the opinion, judgment, and
XXVIII

discretion of the court for that of the Superintendent of Banks of Georgia. The grant of a charter to a banking corporation has been, by Article 3, Section 7, Paragraph 17, of the s3id Constitution of Georgia, expressly made an executive function and power to the extent that sections 1 and 2 of article 16 of the Act to regulate banking, approved August 16, 1919, and codified as section 13-1701 and 13-1702 of the 1933 Code of Georgia, insofar as they seek to substitute the judgment, opinion, and discretion of the superior court for the judgment, opinion, and discretion of the Superintendent of Banks, are unconstitutional and void because they are in conflict with and in violation of Article 1, Section 1, Paragraph 23 of the 1945 Constitution of the State of Georgia, which provides: 'The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall at the same time, evercise the functions of either of the others, except as herein provided.' " The Supreme Court affirmed the judgment of the trial court, holding that the above ground of demurrer was too indefinite to raise any question for adjudication and was insufficient to present any question for review. This summary of important cases handled by the Attorney General and the Department of Law during 1950 and 1951 is not intended to be exhaustive, but is published for the purpose only of indicating to citizens and officials of the State of Georgia some of the litigation handled by the Attorney General which was of particular significance and which attracted general and widespread attention throughout the State and Nation.
XXIX

TABLE OF CASES
Appellate Court Decisions Rendered January 1, 1950 to December 31, 1951 In Cases Participated In By Law Department
I. FEDERAL COURTS
SUPREME COURT OF THE UNITED STATES: Bryan v. State of Georgia _____________________________________ 339 U.S. 904 Burke v. State of Georgia______________________________________ 338 U.S. 941
Davis v. O'ConnelL ___________________________________________ 341 U.S. 941
Federal Power Commission v. East Ohio Gas Co. ________________ 338 U.S. 464
Georgia v. Pennsylvania Railroad------------------------------ 339 U.S. 975
340 u.s. 889
Georgia Railroad and Banking Co. v. Redwine __________________ 339 U.S. 901 Jackson v. Ruthazer___________________________________________ 339 U.S. 980 Johnson v. Dye________________________________________________ 338 U.S. 864
338 u.s. 896 341 u.s. 911
Johnson v. Matthews------------------------------------------- 340 U.S. 828
Middlebrooks v. Ross------------------------------------------ 342 U.S. 862 Patterson v. State of Georgia __________________________________ 339 U.S. 916 Porch v. State of Georgia______________________________________ 341 U.S. 954
Redwine v. Dan River Mills ___________________________________ 340 U.S. 954 Regents of the University System of Georgia v. CarrolL ________ 338 U.S. 586 Solesbee v. Balkcom___________________________________________ 339 U.S. 9 South v. Peters________________________________________________ 339 U.S. 276 State v. VVenger---------------------------~------------------- 342 U.S. 322 Sweatt v. Painter---------------------------------------------- 339 U.S. 629 United States v. Texas_________________________________________ 339 U.S. 707
340 u.s. 900 340 u.s. 907
VVallace v. Foster_ _____________________________________________ 340 U.S. 815
COURTS OF APPEALS OF THE UNITED STATES: Davis v. O'Connell (8th Circuit) _______________________________ 185 F. 2d 513
Jackson v. Ruthazer (2nd Circuit)----------------------------- 181 F. 2d 588 Johnson v. Matthews (D. C. Circuit)-------------------------- 182 F. 2d 677
Redwine v. Citizens and Southern Nat. Bank (5th Circuit) ______ 189 F. 2d 328 Ross v. Middlebrooks (9th Circuit) ____________________________ 188 F. 2d 308
State of Georgia v. VVenger (7th Circuit) ______________________ 187 F. 2d 285
XXX

UNITED STATES DISTRICT COURTS: (Reported Decisions Only)
Application of Middlebrooks (S.D. California)---------------- 88 F. Supp. 943 'Georgia Railroad and Banking Co. v. Redwine (N.D. Georgia) __ 85 F. Supp. 749
In re Douglas Mill, Inc. (N.D. Georgia)----------------------- 10 F.R.D. 465 South v. Peters (N.D. Georgia) _____________________________ R9 F. Supp. 672 State of Georgia v. Wenger (E.D. Illinois) ___________________ 94 F. Supp. 976
II. GEORGIA STATE COURTS
SUPREME COURT OF GEORGIA
Anderson v. State---------------------------------------------- 206 Ga. 527 Biegun v. State________________________________________________ 206 Ga. 618 Boyd v. State--------------------------------------------------- 207 Ga. 567 Bradford v. Carl Mills, Warden--------------------------------- 208 Ga. 198 Brock v. State__________________________________________________ 206 Ga. 397 Brock v. State __________________________________________________ 208 Ga. 318 Brown v. State_________________________________________________ 208 Ga. 304
Cade v. State___________________________________________________ 207 Ga. 135 Capitol Distributing Go. v. Redwine _____________________________ 206 Ga. 477 Carrigan, alias Valor, v. State________ _: _________________________ 206 Ga. 707 Cole v. Foster-------------------------------------------------- 207 Ga. 416 Cox v. Peters-------------------------------------------------- 208 Ga. 498 Delinski v. Dunn _______________________________________________ 206 Ga. 825
207 Ga. 723 Eaton v. State_________________________________________________ 208 Ga. 467
Faust v. State------------------------------------------------- 208 Ga. 53 Fountain v. State______________________________________________ 207 Ga. 144
Gentry v. State_________________________________________________ 208 Ga. 370 Georgia Public Service Commission v. Smith Transfer Co, ________ 207 Ga. 658 Georgia Railroad and Banking Co. v. Redwine ____________________ 208 Ga. 261 Harris v. Duncan_______________________________________________ 208 Ga. 561 Harris, alias Williams, v. State__________________________________ 207 Ga. 287 Henderson v. State______________________________________________ 207 Ga. 206
208 Ga. 73 Hollis v. State__________________________________________________ 207 Ga. 581 Howard v. Warren---------------------------------------------- 206 Ga. 838 Hubbard v. State_______________________________________________ 208 Ga. 472
Jones v. State__________________________________________________ 207 Ga. 379 Joyner v. State_________________________________________________ 208 Ga. 435 Kersey v. State_________________________________________________ 207 Ga. 326
Lynch v. State------------------------------------------------- 207 Ga. 325
Martin v. State------------------------------------------------ 207 Ga. 482 Mays v. State__________________________________________________ 207 Ga. 143
XXXI

~ethvin v. Peters----------------------------------------------- 208 Ga. 506 Mims v. State-------------------------------------------------- 207 Ga. 118 Moore v. State------------------------------------------------- 206 Ga. 883 McBurnett v. Balkcom__________________________________________ 2tl7 Ga. 452 ~cBurnett v. Warren ___________________________________________ 208 Ga. 225 McClung v. State_______________________________________________ 206 Ga. 421 ~cGregor v. W. L. Florence Construction Co. ___________________ 208 Ga. 176 McLendon v. Balkcom------------------------------------------- 207 Ga. 100 McLendon v. State______________________________________________ 207 Ga. 328 ~cLendon v. Warren-------------------------------------------- 208 Ga. 229 McLendon v. Wilburn------------------------------------------- 206 Ga. 646 Parks v. State__________________________________________________ 208 Ga. 508 Parks, alias Alexander, v. State_________________________________ 206 Ga. 675 Patterson v. Balkcom------------------------------------------- 207 Ga. 511 Patterson v. State______________________________________________ 207 Ga. 357 Persons v. Lea__________________________________________________ 207 Ga. 384 Phillips v. State________________________________________________ 206 Ga. 418 Phillips v. State_________________________________________________ 207 Ga. 336 Pierce v. State_________________________________________________ 206 Ga. 500
Porch v. State-------------------------------------------------- 207 Ga. 645 Pressley v. State---------------------------------------------- __ 207 Ga. 274
Redwine v. Dan River ~ills _____________________________________ 207 Ga. 381 Redwine v. State_______________________________________________ 207 Ga. 318 Redwine v. The Southern Co.___________________________________ 206 Ga. 377 Reece v. State__________________________________________________ 208 Ga. 165
Richardson v. State--------------------------------------------- 207 Ga. 373 Robinson v. State_______________________________________________ 207 Ga. 337 Royals v. State_________________________________________________ 208 Ga. 78
Schneider v. City of Folkston___________________________________ 207 Ga. 434 Solesbee v. Balkcom, Warden ________________ ------------------- 205 Ga. 122
207 Ga. 352 208 Ga. 121 State v. Vaughn ________________________________________________ 207 Ga. 583 Strickland v. State---------------------------------------------- 207 Ga. 284
Teague v. State________________________________________________ 208 Ga. 459
Walker v. State_________________________________________________ 208 Ga. 68 Walker v. State________________________________________________ 208 Ga. 99 Wallace v. Foster______________________________________________ 206 Ga. 561 Westbrook v. University of Georgia Athletic Association __________ 206 Ga. 667 Western Union Telegraph Co. v. State of Georgia_________________ 207 Ga. 675 Williams v. State_______________________________________________ 206 Ga. 499 Williams v. State_______________________________________________ 207 Ga. 620 Wilson v. State Highway Department_ ___________________________ 208 Ga. 510 Woods v. State_________________________________________________ 208 Ga. 456
Wright v. State------------------------------------------------- 206 Ga. 644 Wyatt, alias Jordan, v. State___________________________________ 206 Ga. 613 Wynn v. State_________________________________________________ 207 Ga. 141
XXXII

COURT OF APPEALS OF GEORGIA: Coweta County v. Banister____ -------------------------- 80 Ga. App. 794
80 Ga. App. 796 Grady County v. Andrews __________________________________ 81 Ga. App. 628 Grady County v. Banker__________________ ---------------- 81. Ga. App. 701 Grady County v. Groover___________________________________ 81 Ga. App. 617 John Monoghan Inc. v. State Highway Department__________ 81 Ga. App. 289 Redwine v. ArvanitL _______________________________________ 83 Ga. App. 203 Redwine v. Southern Wine Co. ______________________________ 83 Ga. App. 206 State Department of Revenue v. Snelling____________________ 84 Ga. App. 238 State Highway Department v. Crow________________________ l:l4 Ga. App. 631 State Highway Department v. Holloway______________________ 84 Ga. App. 632
III. ADMINISTRATIVE HEARINGS (Reported Decisions Only)
GEORGIA PUBLIC SERVICE COMMISSION: Re Southern Bell Telephone and Telegraph Co, __________ 91 P.U.R. (N.S.) 97
XXXIII

SUMMARY OF CASES, OPINIONS, AND BILLS PREPARED FOR MEMBERS OF
THE GENERAL ASSEMBLY DURING 1950-1951 Total number of cases closed during 1950-1951, and
pending as of December 31, 195L ____________________________________ _414 Number of cases terminating favorably to State________________ 153 Number of cases terminating unfavorably to State______________ 44 Number of cases settled or consent order taken __________________ 23
Total number of cases closed_____________________________ 220 Number of cases pending as of December 31, 1951,
in litigation or awaiting decision of Courts_____________________ 194 414
Opinions Rendered During 1950-1951: _____ -------------------- ____________932 Calendar year 1950: Official ----------------------------------------------183 Unofficial ________ -----------------------------------291 Total 1950 ----------------------------------------------- 474 Calendar year 1951: Official ____ ---------------- ________________________214 Unofficial _____ ----------------- ______________________ 244 Total 1951 ----------------------------------------------- 458 932
Approximate number of bills prepared during 1950-51 for members of the {}eneral AssemblY--------------------------------960
XXXIV

PART II Opinions of the Attorney General
1950
XXXV

1
BANKS AND BANKING-Branch Banks. Georgia law in reference to branch banks applies to national as well as to State banks.
July 24, 1950
Honorable A. P. Persons Superintendent of Banks
QUESTION: When a Bank obtains permission from the comptroller of the Currency to
open a branch, which branch would not be permitted to a State chartered Bank, is its continued operation lawful?
ANSWER: By Act of the 1927 Legislature, Georgia Laws 1927, page 195, codified as
Section 13-203 of the Code, it was provided that after January 1, 1928 no new branch bank should be established. By the same Act, branch banks then in existence were allowed to continue in existence. By Act approved July 20, 1929, Georgia Laws 1929, page 214, an exception was made with respect to branches having their principal offices in cities with a population between 80,000 and 125,000. By Act approved August 17, 1929, an additional exception was made with respect to all banks having their principal offices in cities having a population of not less than 200,000.
The prohibition against the creation of new branch banks contained in the Act of 1927 is a general prohibition and nothing in the language of that statute would purport to limit its application to banks chartered under State Law. At the outset, in order to answer your inquiry, we must determine whether the State has authority to limit the creation of new branch National Banks. The Supreme Court of the United States in Anderson National Bank v. Luckett, 321 U.S. 233, at .page 248, speaking through Mr. Justice Stone, said:
"This Court has often pointed out that National Banks are subject to State laws, unless those laws infringe the National Banking Laws or impose an undue burden on the performance of the Bank's function."
Colorado Bank vs. Bedford, 310 U.S. 41, and Lewis v. The Fidelity and Deposit Company, 292 U.S. 559, may be cited from a large number of cases to the same general effect.
The precise question arose in State, ex rei, Barrett v. The First National Bank, 297 Mo. 397. There the Superintendent of Banks by quo warranto proceeded against a National Bank to determine its authority to maintain a branch bank in the city of St. Louis in violation of the laws of Missouri. The Missouri statute (Section 11-737, R.S. Mo., 1919) provides:
"That no Bank shall maintain in this State a Branch Bank or receive deposits or pay checks except in its own banking house."
The Supreme Court of Missouri held that this National Bank could not be legally operated. 'The case was then reviewed by the Supreme Court of the United States, First National Bank v. The State of Missouri, 263 U.S. 640, which in affirming the Supreme Court of Missouri stated at page 656:
"National Banks are brought into existence under Federal legislation, are instrumentalities of the Federal Government and are necessarily subject to the paramount authority of the United States, nevertheless, National Banks are subject to the laws of a city in respect of their affairs unless such laws interfere with the purposes of their creation, tend to impair or destroy their efficiency as Federal agencies or conflict with the paramount law of the United States. National Bank v. Commonwealth, 9 Wall. 353, 362; Davis V. Elmira Savings Bank, 161 U.S. 275, 283; McClellan v. Chipman, 164 U.S. 347, 357."
The Georgia statute limiting the establishment of new branch banks does

2
not conflict with the laws of the United States but is in complete harmony therewith. The Federal statute upon branch National Banks, 12 U.S.C.A., Section 36 (c), in part provides:
"A National Banking Association may, with the approval of the Comptroller of the Currency, establish and operate new branches: (1) within the limits of a city, town or village in which said association is situated, if such establishment and the operation are at the time expressly authorized to State banks by the law of the State in question; and (2) it may appoint within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question.... "
The Attorney General of the United States has considered the Georgia law with respect to branch banks, including the two Acts of 1929 making exceptions to the general rule in 36 Opinions of the Attorney General, page 344. He concluded that the Georgia statutes in question were applicable to National Banks and were valid subsisting laws.
Not only is Georgia law with reference to branch banks applicable to National Banks in Georgia, but when such State law has been violated by a National Bank you, as Superintendent of Banks, have the full power and authority to enforce the State law by any appropriate remedy. First National Bank v. State of Missouri, 263 U.S. 640, headnote 6.
BANKS AND BANKING-Investment Power Banks may not invest more than 50% of their capital and unimpaired surplus in general obligations of a political subdivision. Banks may not invest more than 10% of their capital and unimpaired surplus in investment securities of any one obligor.
April 12, 1950
Honorable A. P. Persons Superintendent of Banks
FACTS: "We have been called upon by several banks for our interpretation of Code
Section 13-2023 amended, approved January 26, 1950. "The Act reads, 'that the total amount of obligations of any one political
subdivision of the State of Georgia shall at no time exceed 50 per cent of the capital and unimpaired surplus, and shall consist only of general obligations of such political subdivision.' You will further note that a bank may purchase bonds, notes or other debentures, known as investment securities of one obligor up to 10 per cent of the capital and unimpaired surplus.
QUESTION: "Inasmuch as there appears to us some question as to the meaning of the
Act, we will thank you for your opinion clarifying same." ANSWER:
Section 13-2023 of the 1933 Code contains limitation on the investment powers of ,banks. When codified, and at all times since, up to the present, that Section of the Code contained the following provision:
" ... nor shall a bank purchase or hold any bonds or debentures except such as are classed as investment securities, and the buying and selling of such securities shall be limited to buying and selling without recourse marketable obligations upon which there has never been a default, evidencing, indebt-

3
edness of any person, partnership, association, or corporation in the form of bonds, notes and/or debentures, commonly known as investment securities, under such regulations as may be prescribed by the Superintendent of Banks."
It is clear that the term "investment securities" included the obligations of political subdivisions, since the Act as originally codified expressly referred to the obligations of counties, districts or municipalities of the State which have been validated as required by law .
Code Section 13-2023, as it appeared in the 1933 Code allowed banks to purchase not over 25 per cent of its capital and unimpaired surplus of investment securities. This limitation as to amount did not apply to obligations of the counties, districts or municipalities of the State.
In 1947, this Section was amended so that the limitation was placed at 10 per cent of the capital and unimpaired surplus as applied to any one obligor. The Act of 1947 also struck the provision which exempted counties, districts and municipalities from this limitation. Therefore, the 10 per cent limitation did apply to counties, districts and municipalities. This ten per cent limitation applied to general and special obligations.
The 1950 Legislature amended this Section by Act approved January 26, 1950, Georgia Laws 1950, page 18, adding the following language to this Section:
"Provided, further, that the total amount of obligations of any one political subdivision of the State of Georgia shall at no time exceed 50 per cent. of the capital and unimpaired surplus, and shall consist only of general obligations of such political subdivision."
I am of the opinion that the limitation imposed upon the purchase by banks of ,obligations of political subdivisions other than general obligations is only a limitation upon the additional powers of investment given to banks by the Act of 1950. Banks may purchase investment securities which are marketable obligations and which have never been in default, and the amount of such securities of any one obligor shall not exceed 10 per cent of the bank's capital and unimpaired surplus. Investment securities include obligations of counties, districts 8nd municipalities which we may call "special" obligations, such as water works certificates and revenue anticipation certificates. In addition, since the amendment of January 26, 1950, banks may purchase general obligations of counties, districts and municipalities of this State by investing up to 50% of its capital and unimpaired surplus in such general obligations.
BOUNDARIES, JURISDICTION AND TIME OF THE STATE-Time (Unofficial)
Georgia has Eastern Standard Time.
May 30, 1950 Mr. David P. Jamieson
I am pleased to acknowledge receipt of your letter of May 23, 1950 in which you request information concerning time boundary lines in Georgia.
The Act approved March 21, 1941 (Ga. Laws, 1941, page 427) provides as follows:
"An Act to provide for and designate the line through the State of Georgia which shall be considered the time line, that is, the line fixing the boundary of the te1Titory in which eastern time shall prevail and the territory in which central time shall prevail.

4
"Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of same that:
"Section 1. From and after the passage of this act the western boundary line between the State of Georgia and the State of .Alabama, shall be designated the western line of that particular territory in which Eastern Standard Time shall prevail, so that the entire area of the State of Georgia will be included in the territory using Eastern Standard Time.
"Section 2. Be it further enacted that after -the passage of this act, there shall be no other standard time within the State of Georgia except Eastern Standard Time.
"Section 3. Be it further enacted that all laws and parts of laws in conflict with this Act be and the same are hereby repealed."
The Act approved January 18, 1943 (Ga. Laws, 1943, page 430) provides as follows:
"An Act to amend an Act Of the General Assembly of Georgia, approved March 21, 1941 (Ga. Laws 1941 pp. 427-28), entitled: 'An Act to provide for and designate the line through the State of Georgia which shall be considered the time line, that is, the line fixing the boundary of the territory in which Eastern Time shall prevail and the territory in which Central Time shall prevail,' so as to amend said Act by substitvting the word' Central' in lieu of the word 'E,astern' wherever the same appears in said .Act, so as to provide Central Standard Time for the State of Georgia, and for other purposes, the said Act when amended to read as follows:
"Section 1. From and after the passage of this Act the western boundary line of the State of Georgia, that is, the state boundary line between the State of Georgia and the State of Alabama shall be designated the western line of that particular territory in which Central Standard Time shall prevail, so that the entire area of the State of Georgia will be included in the territory using Central Standard Time.
"Section 2. Be it further enacted that after the passage of this Act there shall be no other standard time within the State of Georgia except Central Standard Tjme; Provided however, this Amendment shall be subject to the War Time or An Act to save daylight, as amended by the Congress of the United States of America and shall be effective only so long as the State of Georgia has War Time or Daylight Saving Time as provided by said congressional act, and when the amendment, approved January 20, 1942 to an Aet of Congress approved March 19, 1918, entitled, 'An Act to save daylight and to provide standard time for the United States,' ceases to be effective, then this amendment shall be no longer effective and the State of Georgia shall have Eastern Standard Time as provided in the Act of the General Assembly of Georgia, which, as aforesaid, was approved by the General Assembly of Georgia March 21, 1941 (Ga. Laws 1941 pp. 427-28).
"Section 3. Be it further enacted that all laws and parts of laws in conflict with this Act be and the same are hereby repealed."
Section 1 Of the Act approved March 21, 1941 above cited is now in full force and effect in this State.

5
CONSTITUTION OF THE STATE-Donation or Gratuity If there is a good moral consideration to the State, then an award to a person is not unconstitutional.
February 9, 1950
Honorable Herman E. Talmadge Governor, State of Georgia
OFFICIAL OPINION FACTS:
"1. The General Assembly shall not by vote resolution or order, grant any donation or gratuity in favor of any person, corporation or association."
The specific Bills that you inquired about are: "(1) One Bill is to pay a former inmate of the penitentiary for time served, setting forth that he was innocent of the crime of which he was convicted. "(2) Other Bills seek to pay damages to citizens for property and injuries received in automobile accidents with cars driven by state officials in state cars. "(3) .Another seeks to pay damages for injuries to automobile of a citizen which was forcibly taken by two escaped conviets and damaged while in their possession."
QUESTION: Are these unconstitutional donations or gratuities?
ANSWER: Webster defines "donation" as: "That which is given as a present, gift. A
voluntary transfer without consideration," and defines "gratmty" as: "Something given freely or without recompense, a free gift, a present."
In the case of State Highway Department of Georgia vs. Bass, 197 Ga. 35li, one of the positions taken by the State Highway Department in denying liability for workmen's compensation was that the Highway Department could not be held liable for injuries to its employees, regardless of the oate of the in.. jury, because payment of workmen's compensation is in violation of the constitutional provision relative to donations and gratuity. The Supreme Court held that this was not a gratuity or a donation.
In the case of Fairfield vs. Huntington, 23 Ariz. 528, it was held: "An appropriation to compensate a State employee for an injury by accident in the course of and arising out of his employment is not a donation within the prohibition of the constitution, notwithstanding the State was not legally liable to make the reparation."
It appears that the .courts make a distinction of the words "donation" and "gratuity" when the recipient has furnished some consideration for same. Ap.. parently, the courts do not break consideration down to "good" and "valuable," or, in other words, it appears that a good moral consideration upon the recipient is sufficient to take the award or grant by the Legislature out of the purview of the constitutional provision.
Therefore, I reach the conclusion that the first two specific Bills referred to in your request do not fall within the purview of Article VII, Section I, Paragraph 2 of the Constitution of Georgia which prohibits the General Assembly from granting any donations or gratuities in favor of any person, corporation or association.
On the other hand, the third specific Bill referred to; namely, the one designed to pay damages for injuries to automobile of a citizen which was forcibly taken by two escaped convicts and damaged while in their possession is in my opinion completely devoid of any facts that would indicate either a moral or legal consideration flowing to the State and would, therefore, be an outright gratuity as prohibited by the Constitution.

6
CONSTITUTION OF THE STATE-Eligibility of Governor For a person to be ineligible to hold the office of Governor, he must have held a four-year term of governorship within the last four years, all other factors of eligibility being satisfied.
January 10, 1950
Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUESTION:
Would Governor Herman E. Talmadge or Honorable Ellis Arnall be eligible to hold the office of Governor of Georgia should either run and be elected in 1950? ANSWER:
The public press has reported that I ruled unofficially in 1948 that the successful candidate in the general election of that year would be ineligible to succeed himself.
It is true that in May, 1948, I rendered an official opinion to Acting Governor Thompson holding that he was not then serving a "term of office as Governor" and was not, therefore, prohibited from letting highway contracts during the last three months of his tenure. By necessary implication it was my opinion that whoever might be elected Governor in the following election would be prohibited by the terms of the Constitution from holding office if reelected in 1950.
The question ruled on in my official opinion to Governor Thompson was considered in a law suit before the Honorable Charles W. Worrill, at that time a Superior Court Judge. Judge Worrill ruled contrary to my opinion. The action was later dismissed by the plaintiff, so that appellate court review was precluded.
Moreover, the Supreme Court on September 12, 1949 in the ease of McLendon v. Everett, 55 S. E. 119 (2), enunciated a clear cut rule for construing statutory and constitutional provisions limiting the right of a person to hold public office. In that case the ,Court held that statutory and constitutional provisions limiting the right of a person to hold public office are to be given a strict construction against ineligibility and a liberal construction in favor of eligibility-eligibility being the rule and ineligibility the exception.
The Constitution fixes the term of the Governor at four years and until his successor is elected and qualified. The Constitutional purpose to have regularly recurring terms of four years each is plain and clear.
The provision as to ineligibility is in the following language: "The Governor serving at the time of adoption of this Constitution and future Governors shall not be eligible to succeed themselves and shall not be elegible to hold the office until after the expiration of four years from the conclusion of his term of office." (Art. 5, Sec. 1, Par. 1, Constitution of Georgia, 1945.) It is indeed clear that the words "from the conclusion of his term of office" mean from the conclusion of a regular four year term, and that in using the language the framers of the Constitution had in mind the successively recurring four year terms contemplated by the Constitution. If there is any ambiguity in this part of the Constitution of 1945, we may look to the language of the corresponding Section of the previous Constitution and the legislative history of the present Constitution to resolve this ambiguity. As is stated in 11 American Jurisprudence, Constitutional Law, page 676, Section 72: "Frequently the clue to the real meaning of an ambiguous provision in the

7

Constitution may be found by reference to corresponding provisio,1s in the prev-

iously existing Constitution. . . . "

The comparable Section of the Constitution of 1877, as amended is crystal

clear upon this point, stating:

"After qualifying for a four year term, he (the Governor) shall not be

eligible to be reelected for the next succeeding four year term or any part

thereof."

The Constitutional Commission voted to .delete all restrictions. (2 Records

of the Constitutional Commission, page 297.) In this form the Constitutional

Resolution was presented to the Legislature. When the restriction on succession

was restored by a Committee amendment, it was thought necessary to make

express provision as to its effect on the Governor then in office. This neces-

sity, rather than any desire to change the substance of the old Constitutional

provision, accounts for the difference in language in the two Constitutional

provisions.

It appears that you were elected at the General Election in 1948, not for a

regular term of four years, but as a successor to the Governor for the unex-

pired term. (Code Sec. 2-3007). This phraseology was used on the ballot in

the 1948 General Election, which necessarily, by implication at least, led the

people to believe that you would he elected as a successor to fill an unexpired

term.

Manifestly you are not now serving such a term of office as Is contemplated

by Art. 5, Sec. 1, Par. 1 of the Constitution (Code Sec. 2-3001), which term is

one of four years and until a successor shall be chosen and qualified. It is not

necessary to determine whether you are now serving the unexpired term of

Ellis Arnall or the unexpired term to which your father had been elected but

for which he had never qualified at the time of his death.

It is wfficient to say that there must be found in the Constitution larrguage

clearly declaring you to be ineligible under the circumstances in order to de-

prive you of the right to serve and the right of the people to elect you for a

full Constitutional four year term if they so desire.

The "unexpired term" which you are now serving is not such a term as is

contemplated by the Constitution.

The language "future Governors shall not be eligible to succeed themselves"

must be considered in connection with the preceeding words, "the Governor

serving at the time of the adoption of this Constitution," and when so con-

sidered it necessarily follows that a future Governor, elected by the people for

a Constitutional term of four years such as the Governor in office at the time

of the adoption of the Constitution was serving, and not one elected to fill a

vacancy.

Further emphasis is placed upon this conclusion when we consider the

language in the paragraph of the Constitution providing for a Lieutenant Gov-

ernor. Under the paragraph of the Constitution providing for the Lieutenant

Governor, a Governor is elected as a successor for the unexpired term only in

the event of the unusual and extraordinary circumstances of a vacancy arising

more than thirty days before the mid-term general election.



It is therefore my conclusion that, inasmuch as you have never qualified

for a fou,.. year term in the sense of a Governor's fixed term as provided by

the Constitution, you would be eligible to hold the office of Governor should you

run and be elected in 1950.

By the same token, Ellis Arnall would be eligible to hold the office should

he run and be elected, since four years will have elapsed since he qualified, ran

and was elected and did hold a fix~d term of four years as contemplated by

the Constitution.

8
In further support of my conclusion with reference to the eligibility of Mr. Arnall, I cite the case of Crovatt v. Mason, 101 Ga. 247, in which it was held:
"The word 'term,' when used in reference to the tenure of office, means ordinarily a fixed and definite time ... It is usually provided hy law that officers elected for a fixed term shall hold not only for that term but until their successors are elected and qualified ... It is apparent that the provision 'or until his successor is elected and qualified' does not reduce or change the term for which the officer is elected, but the meaning of such phrase is to extend the time in which he may hold the office beyond his term to a period when the office is filled by another who has been elected and qualified."
This case has never since been modified or overruled. It is my hope that my views on the eligibility of you and former Governor Ellis Arnall will put at rest this important question in the interest of the public and orderly government, and forever foreclose the possibility of a recurrence of a situation such as arose in 1947 with its accompanying strife ;md serious impairment of the efficiency of our State Government.
CONSTITUTION OF THE STATE-Legislation House Bill No. 747 is ineffectual and void and does not apply to Wilkes County or any other County, and it is unconstitutional because the classification is unreasonable and arbitrary.
February 17, 1950
Honorable Herman E. Talmadge Governor, State of Georgia
OFFICIAL OPINION QUESTION:
I have been requested by Honorable Edgar L. Smith, Ordinary of Wilkes County, to obtain an official ruling as to whether or not House Bill No. 747, Act, 554, approved February 8, 1950, applies to Wilkes County, and is it constitutional? ANSWER:
The caption of House Bill No. 747 reads as follows: "An Act to penalize the possession of malt beverages and wine in all counties of the State of Georgia having a population of not more than 15,083 and not less than 15,085 according to the Federal census of 1940; to fix punishment therefor and to provide f.or a referendum before the same shall become operative, and for other purposes." Section 1 of this Act reads as follows: "That it shall be unlawful for any corporation, firm, or individual, in all counties in the State of Georgia having a population of not more than 15,083 and not less than 15,085 according to the Federal census of 1940, to have, control or possess any malt beverages as defined in Section 58-704 of the Code of Georgia and in Section 4 of an Act Of the General Assembly of Georgia approved March 23, 1935, or any fermented wine, having such alcoholic content as fermentation may produce, at any place of business and outside of any hours not used exclusively as the residence of the owner thereof." I would like to preface any remarks by saying that all Acts of the General Assembly are presumed to be constitutional unless declared otherwise by a Court of competent jurisdiction. You will note that this Act applies to all counties having a population of not more than 15,083 and not less than 15,085. It is impossible that any county

9
come under the prov1s1ons of this Act because no county could possibly have such a population. For the purposes of illustration, it is evident that no person could have not more than 83c and not less than 85c at the same time.
In the case of DeWitt et al. v. Richmond County et al., 192 Ga. 770, our Supreme Court said:
"It is the duty of the court to declare an Act void where the .Act discloses that it is impossible to carry out its provisions."
The Court also quoted with approval the Montana case of In re Maury, 97 Mont. 316, which said:
"If an act of the legislature is so vague and uncertain in its terms as to convey no meaning, or if the means of carrying out its provisions are not adequate or effective, it is incumbent upon the courts to declare it void and inoperative."
It is my opinion that the Act in question is ineffectual and void and does not apply to Wilkes County or any other county in the State.
Paragraph 9 of Section 102-102 of the Code of Georgia reads as follows: "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. Grammatical errors shall not vitiate, and a transposition of words and clauses may be resorted to when the sentence or clause is without meaning as it stands." (Emphasis supplied.) I do not believe that this statute would be applied to this Act, but let us assume that certain words and clauses could be transposed so that it would now read: " . . . not more than 15,085 and not less than 15,083 . . . " I am of the opinion that even this would not be sufficient to sustain an attack on the constitutionality of this Act.
In Chapters 58-7, 58-8 and 58-9 of the Code of Georgia, and the Annotated Code and supplements thereto, are provisions of general law relating to the possession of malt beverages and wines. I am of the opinion that the Act in question is unconstitutional as constituting a local or special law in a case for which provision has already been made by existing general law.
The constitutional provision in question is Article I, Section IV, Paragraph I (Code Section 2-401) which reads 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."
In the case of Jones v. Methvin, 193 Ga. 17, the .Supreme Court held that an Act providing that in all counties having a population of more than 21,020 and less than 21,024, which included only Dodge County, it should be the duty of the county commission to select and designate the official organ for the publication of legal advertising in the county, was unconstitutional as constituting a special law in a case for which provision had already been made by existing general law.
.Also see, Christian v. Moreland, 203 Ga. 20, and Calhoun County v. Early County, 205 Ga. 169.
I do not believe that House Bill No. 747 would be upheld, but some "population" Acts have been held to be constitutional where the classification was not arbitrary and had some reasonable relation to the subject matter of the law. Therefore, let us further assume that the population classification is reason-

10
able in House Hill No. 747. Even so, there is still a third avenue of attack which in my opinion would cause it to be held unconstitutional:
You will note that the Act reads: " ... having a population of not more than 15,083 and not less than 15,085 according to the Federal census of 1940 . . . " It does not have the usual phrase which is contained in the majority of the "population'' Acts, namely: "or any future F'ederal census." I need only cite the case of Medders v. Stewart, 172 Ga. 507, to illustrate the Court's expressed views in this connection. The Court said: " ... 'It is further alleged that the act of 1929 which is made applicable only to counties having a population according to the census of the United States of 1920 of not less than 6458 and not more than 6462, and that such classification is unreasonable and arbitrary and therefore void.' . . . 'The court did not err in holding the act unconstitutional and void, because in conflict with the constitution, as stated. The classification has no reasonable relation to the subject matter of the law, and furnishes no legitimate ground of differentiation. It amounts merely to an arbitrary discrimination, not permissible under the Constitution. The so-called class is so hedged about and restricted that the act applies to only one county, and other counties coming within the class provided can not also come within the purview of the law; and therefore it is a local or special act, and not a general one. The classification by population is limited to the United States census of 1920, and can not be affected by future census enumerations, and only a county having not less than 6458 and not more than 6462, under the census of 1920, falls within the classification.' . . . "
In conclusion, it is my opinion that House Bill No. 747 is void and ineffectual and does not apply to Wilkes County or any other county in Georgia, and further that it is unconstitutional for the reasons set out above.

CONSTITUTION OF THE STATE-Ratification of Amendments The question of whether the certification of the returns of voting on Constitutional Amendments should be broken down must be answered by a study of scope of the various amendments.

December 29, 1950

Honorable Herman E. Talmadge Governor of Georgia

OFFICIAL OPINION QUESTION:
Should the certificate of the return of the voting submitted to the Governor by the Secretary of State show the vote in certain designated areas, and what vote is necessary to ratify the amendments in question?

ANSWER: The amendments in question are Numbers 26, 29, 21, 23, and 25. I have
arranged them and will discuss them in that order, rather than chronologically, because of certain similarities of subject matter among them.

Each of the amendments in question affects only one or more subdivisions of the State rather than the entire State. The constitutional requirement for ratification of such amendments is to be found in Article XIII, Section I, as

follows:

"

If the proposed amendment is not one that directly affects the

whole State, but only one or more subdivisions thereof, said amendment shall

not become a part of this Constitution unless it receives both a majority of the

11
electors qualified to vote voting thereon in the State as a whole, but also a majority of the electors qualified to vote voting thereon in the particular subdivision or subdivisions affected."
The 'Constitution of 1945 basically changed the manner of submission of so-called ''local" constitutional amendments to the vote of the people. The new section has not as yet been judicially construed, and, therefore, my opinion is of necessity based only on the fundamental principles of statutory construction and interpretation.
Several of the resolutions proposing the amendments in question themselves contain certain purported requirements as to the vote necessary for ratification of the amendments proposed. At the outset, it should be stated that such requirements in the resolutions are valid only insofar as they do not limit or conflict with the requirements which the Constitution itself has laid down for submission of proposed amendments to the people. .As our Supreme Court said in the case of Cartledge v. City Council of Augusta, 189 Ga. 267, at 269,
''It was the evident purpose of the framers of the constitution to provide a direct and simple plan for amending it. They specified the steps to be taken, and who should take them. In acting on a proposal to amend the constitution, the General Assembly is not legislating at all, nor can they by legislation add to, take from, or alter the mode of its submission to the people. If the amendment be proposed in the manner pointed out in the constitution, the General Assembly have no right to throw requirements around it in addition to those specified in the constitution."
Amendment Numbers 26 and 29
These amendments remove the homestead exemption from school taxes assessed and collected by Fulton County for the support and maintenance of education as recommended 'bY the Fulton County Board of Education, and expand the constitutional limitation on the debt incurred by the Fulton County Board of Education from seven percent of the assessed value of all taxable property to ten percent of the value of such property.
Your request states that the returns of the vote on these amendments, as certified to you by the Secretary of State, show that Fulton County as a whole ratified both amendments, but that the certificate does not show the vote cast on the amendments in the Fulton County School District as a separate unit. You have requested my opinion as to whether the certificates <;hould show the vote on this amendment in the School District alone, and if so w:hether or not the amendments must have been ratified by the voters in the School District alone.
The basic question for determination is, what subdivisions ::tre affected by the two amendments. It is my definite opinion that Fulton County School District matters are county-wide matters, affecting Fulton County in its entirety, and that, therefore, the only vote required to be certified to you by the Secretary of State is the vote cast by Fulton County as a whole, and that no certificate showing the vote of Fulton County School District alone is necessary.
My opinion that Fulton County School District matters are county-wide matters is based on the following legal reasons and conditions. The Fulton County School District is administered by the Fulton County Board of Education. This body is appointed by grand juries composed of citizens from every part of the county. The School District is supported by tax revenues assessed by the Fulton County tax assessing authorities and collected by the Fulton County tax collecting authorities, both of these offices being county-wide offices. Further, the taxes for support of the School District are levied on and crJl!ected from all property in Fulton County. It is true that there is some ad-

12
justment in the rate made on tax levies on property within the city, but this adjustment does not diminish the indisputable fact that proprety owners within the boundaries of the city as well as without do pay taxes for the support of the School District.
The jurisdiction of the Fulton County Board of Education, as its name implies, is county-wide, and the geographical boundaries of the school district are the boundaries of Fulton County, with the sole exception of the City of Atlanta, and even this exception is only a partial one, for, as pointed out above, citizens and property owners of Fulton County located within the City of Atlanta contribute financially to the Fulton County School District, and as voters and grand jurors take part in the appointment of the Board of Education and the supervision of its activities. The county-wide jurisdiction of the Board, limited solely by the exception of the City of Atlanta, is in keeping with that provision of the Constitution of 1945 w'1ich provides that each county compose one school district under the control and management of a county board of education.
It does not seem to be proper, therefore, to find that the votes cast by citizens of the City of Atlanta should not be considered in determining whether or not the amendments in question were ratified. To do so would be to argue that these citizens be required to share in the appointment, control, and financial support of the F'ulton County Board of Education without a voice in such important changes in its fiscal basis as these amendments present.
In summary, then, it is my opinion that the subdivision affected by Amendments 26 and 29 is Fulton County as a whole, and that the certificate of the vote submitted to you need only show results of the election fo,_ Georgia as a whole and Fulton County as a whole. This having been done, and the returns from both units being for ratification, the amendments were ratified.
Amendment Number 21
This amendment provides that if the corporate limits of the City of Atlanta are extended, the City of Atlanta shall assume and pay a proportionate part of the Fulton County .School District bonds. It is my opinion that the subdivisions affected by this amendment are Fulton County as a whole, and the City of Atlanta. The reasons for my opinion that Fulton County as a whole is affected, and that the F'ulton County School District as a unit is not a subdivision affected, are exactly those set out above in my discusidon of Amendments 26 and 29.
My opinion that the City of Atlanta is a subdivision affected is based on the fact that the city is assuming a financial obligation; this reason, it seems .to me, is so clear as to obviate the necessity of further discusaion.
Inasmuch as the Secretary of State has certified to you the vote from these two subdivisions, that is, Fulton County as a whole and the City of Atlanta, and the certificate shows passage in both said subdivisions together with the State as a whole, I am definitely of the opinion that the amendment was properly ratified.
Amendments Numbers 23 and 25
Amendment 23 provides that upon extension of the corporate limits of the City of .Atlanta into Fulton County, the territory embraced therein shall become a part of the independent school system of the City of Atlanta, ceasing to be a part of the Fulton County School System, and the school property located within the area embraced in the extension shall become the property of the City of Atlanta. Amendment 25 authorizes the General Assembly to create in the unincorporated areas of Fulton County and the City of Atlanta

13
independent governmental authorities and to grant to them certain powers set out in the amendment.
As to both of these amendments, there is no question that both Fulton County and the City of Atlanta are subdivisions which are affected, and the vote of these subdivisions was for ratification of both amendments. However, the contention has been made that in addition to the city and county, there is a third subdivision affected, consisting of the unincorporated areas of Fulton County which will be embraced by the city limits when expanded. It is contended that the vote from these unincorporated areas should be separately compiled and certified to you by the Secretary of State.
Therefore, the question for determination is, are the unincorporated areas of Fulton County in question a "subdivision affected" within the meaning of the Constitution. It is my opinion that they are not.
The meaning of the phrase, "political subdivision," has been many times legally defined as being a subdivision to which certain functions of governmerit had been delegated by the sovereign. The Constitution does not use the word "political" in modification of the word ''subdivision," and therefore, this test is not conclusive, but certainly it is persuasive; applying it, it seems clear that the unincorporated areas are not political subdivisions since they have no delegated governmental powers.
Further, I think additional light on the question is to be found in determining how the county is presently subdivided. For the purpose of this discussion, we have, first, the county at large, from which the City of Atlanta has been carved. It is contended that having carved from the county the incorporated area of the City of Atlanta, we have created not two parts but three, that is, the county as a whole, the incorporated city, and that area of the county not in the city. I am unable to see that dividing the county into two parts creates three entities, legally or arithmetically.
My opinion is bolstered by the fact that the unincorporated areas have no independent existence whatsoever, they have no political structure peculiar to them alone, but, instead, are a part merely of the political structure of Fulton County. These areas elect no officers, collcet no taxes, operate no schools, nor do they perform any governmental Or other function peculiar to them alone. In all these matters they are undistinguished from any other part of the county as a whole.
It is inescapable that persons living in these unincorporated areas will be subjected to certain specific governmental changes when and if such areas are incorporated into the City of Atlanta. For e:x'ample, they will be subject to taxes, governmental administration, and control other than that now existing. There is some merit, therefore, in the contention that this should not be done without the affirmative vote therefor; the contention is, however, without legal merit for the reason that the only unit of government through which they express their wishes in Fulton County, and that unit has voted for ratification. 'They are, for the purposes of this amendment, citizens of Fulton County alone, there being no political structure present which differentiates them from any other unincorporated part of F'ulton County, and none having been created for them for this or any other purpose, even postulating that such a structure could be created.
This, rather than being unusual, is instead traditional in our form of government. Often a minority of the citizens of a political unit are overridden in their wishes by a majority of such a unit; that is what has occurred here.
To reiterate, citizens living in the unincorporated areas of Fulton County are members of a single governmental unit-Fulton County. Their votes are now,

14
and have always been, tabulated solely as Fulton County votes. There is no other available method of tabulating their votes. Since the vote of Fulton County indicates ratification of the amendments in question, it is not in my opinion legally possible to go behind the combined totals of the Fulton County vote and to single out and separately count the votes of any particular area of a county other than those already legally incorporated into existing governmental subdivisions.
In summary, therefore, it is my official opinion that the returns of the votes as certified to you by the Secretary of State are sufficiently complete and require no additional break-down, and on the basis of said certificate all five of the amendments in question stand ratified, and should be so proclaimed.
CONSTITUTION OF THE STATE-Retroactive Law (Unofficial) The Constitution forbids passage of only those retroactive laws which injuriously affect vested rights.
January 6, 1950 Honorable Virgil D. Griffis Attorney at Law
This will acknowledge receipt of your letter of January 2nd with reference to county authorities paying premiums on county officers' bonds under House Bill Number 87, approved February 25, 1949, (Ga. Laws 1949, p. 1190).
On March 28, 1949 I rendered an opinion upon request to Honorable Harvey Atkinson, Director of the Property and License Tax Unit, State Revenue Department, from which I quote as follows:
"I am pleased to acknowledge your letter of March 28th in which you requested that I give you an opinion construing House Bill No. 87, relative to county authorities paying premiums on county officers' surety bonds, and more specifically what date does this bill go into effect.
"I quote from the Act, as follows: 'This Act shall become effective upon the approval thereof by the Governor and shall be effective as to the payment of premiums due on all bonds required of county officers beginning January 1, 1949.'
''The Act was approved February 25, 1949 and, therefore, county officers are entitled to have the county pay for their surety bonds for the year 1949, et seq."
I note that you question the constitutionality of the Act with reference to the payment of the bond premiums due January 1, 1949, as being retroactive, the Act having been approved February 25, 1949. In this connection I call your attention to the fact that the Appellate Courts have repeatedly held that the Constitution forbids passage of only those retroactive laws which injuriously affect vested rights. See Bullard vs. Holman, et. al., 184 Ga. 788, Darby vs. Cook, 201 Ga. 309, Phillips vs. J. L. Peed Co., 78 Ga. App. 471.
COUNTIES-Bond Premiums (Unofficial) If the County Commissioners pay the premium of any officer falling within the Act, then they would be required to pay the premium on all such bonds.
February 20, 1950 Honorable Graydon D. Reddick County Attorney, Crisp County Dear Mr. Reddick:
I am pleased to acknowledge your letter of February lOth relative to the

15
County Officers' Bond Act of 1949 (Ga. Laws 1949, page 1190). I have in several instances given my personal view that the Act of 1949
is permissive and not mandatory, except where the commissioners pay the premium of any officer falling within the category defined in said Act, then the commissioners would be required to pay the premium on all such bonds of such officers.
It would be my personal view that the Act of 1925 combining the offices of Tax Receiver and Tax Collector to form a new office to be known as "Tax Commissioner" and requiring said Tax Commissioner to furnish a bond in the amount of $40,000.00 to be paid by the County, is not in conflict with the provisions of the County Officers' Bond Act of 1949. The payment of this premium is mandatory on the counties by legislative direction.
The 1949 County Officers' Bond Act authorized- the county commissioners to act in their discretion, and if they pay one under this discretion, they must pay all of the bond premiums on the offices defined in the Act. They have no discretion in regard to the 1925 Act above cited and would not be exercising the discretion granted to them under the 1949 Act when paying the bond premium under the mandatory provision of the 1925 Act.
To make the 1949 Act mandatory, the commissioners must exercise their discretion in paying the bond premium of one of the officers defined therein and I cannot reach the conclusion that the commissioners would be exercising any discretion in following the mandatory provision of the Act of 1925. In fact, to do so, would deprive the county commissioners of using any discretion which was the intent of the 1949 Act.
COUNTIES-'Tax Assessors (Unofficial) There shall be a County Board of Tax Assessors consisting of 3 members in each county.
January 30, 1950
Honorable A. S. James, Chairman, Taylor County Commissioners,
I am pleased to acknowledge receipt of your letter of January 11th, in which you request an opinion relative to the County Commissioners' hiring a person to serve as County Tax Assessor. Under the Constitution and Laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various State Departments. However, it is a pleasure for me to refer you to the following sections of the 1933 Georgia Code Annotated which are applicable to your problem:
92-6903. "There is hereby established in each of the several counties of this State, a county board of tax assessors, which board shall consist of three members to be appointed by the board of county commissioners, or by a majority thereof, or by the ordinary in counties which have no board of county commissioners. The order making such appointment shall be regularly entered upon the record of the superior court of the county, and a certificate from the clerk of the superior court reciting said order, and that such person has taken the oath required by law, shall constitute the commission of the members and no other or further commission shall be required."
92-6901. "The county board of tax assessors shall elect one of their number as chairman for such term as they shall fix. The board shall have authority to employ a competent person to serve as secretary. He shall keep a record of the proceedings of the board, and shall receive for his services in this capacity such compensation as may be fixed by the board of county commissioners

16
or other authority in charge of the financial affairs of the county but not less than $3 per day while actually attending sessions of the board; the same to be paid out of the county treasury in the same manner in which other county payments are made. The hoard shall have authority to employ agents to seek out all unreturned taxable stocks and bonds together with all other classes of unreturned taxable property in the county and bring it to the attention of said board. Said agent shall be allowed for such services a commission of not more than 10 per cent. of the amount of tax collected by the county for county and school purposes from such unreturned property so discovered and placed on the digest by the efforts of said agents. The commission allowed said agents shall be paid from the county treasury out of the amounts so placed on the books by the said agents and when collected by the county as a part of the expense of said board."
COURTS-City Courts (Unofficial) A Solicitor General of a City Court is eligible to be a member of the Legislature.
March 28, 1950 Honorable Rosser Malone Attorney at Law
I am pleased to acknowledge receipt of your letter of March 20, 1950 in which you ask my advice as follows: "I am Solicitor of the City Court of Albany and want to know whether or not I would be qualified to run for the Legislature."
.Article III, Section IV, Paragraph VI of the 1945 Constitution of Georgia (Code Section 2-1606) 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 As-. sembly, 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."
In the case of McWilliams v. Neal et al., 130 Ga. 733, the Supreme Court held:
"1. Persons who hold a State office, except justices of the peace and officers of the militia, are ineligible to membership in the General Assembly of this State.
"2. But if one, by reason of holding one of the offices not within the above exception, mentioned in paragraph 7 of section 4, article 3 of the constitution of this State, at the time of his election as a member of the General Assembly, is rendered ineligible to membership in that 'body, the fact of h1s ineligibility would not work an ouster from the first office, but would only affect his right to take a seat as a member of the General Assembly."
I am not familiar with any statute or constitutional provision prohibiting a county officer from serving as a member of the General Assembly and it would be my personal view that a Solicitor of the City Court of Albany create<l_

17
under a special Act of the General Assembly could not be a State officer within the meaning of the above cited constitutional provisioct. However, if the holder of such office receives any emolument or compensation under said office from the State, it may be held to fall within said provisions of the Constitution. In this connection, see the case of Culbreth v. Cannady, 168 Ga. 444.
On May 31, 1934, Honorable M. J. Yeomans, then Attorney General, in an official opinion to Honorable l\1. D. Collins, State Superintendent of Schools, citing the Culbreth v. Cannady case, held:
"While it has been held by our Supreme Court that a County School Superintendent is a county officer (Culbreth v. Cannady, 168 Ga. 444) nevertheless such an officer does receive an emolument from the State of Georgia under the provisions of Georgia Laws 1911, p. 103, Section 15. Under this section, every County School Superintendent within the State of Georgia receives a minimum salary of $450.00 per year and an annual allowance of $150.00 for travelling expenses, which sums are paid out of the school funds of Georgia monthly. Therefore, a County School Superintendent receives an emolument under this State, within the meaning of Code Section 6420, which would render him ineligible for a seat in either house. I think this fact distinguishes this case from that of McWilliams v. Neal, 130 Ga. 733, in which the question was as to the eligibility of a member of the Board of Education of Henry County to membership in the General Assembly."
I have observed over a period of years that a number of City Court Judges have served in our House and Senate.
Your attention is also called to Article III, Section VII, Paragraph I of the 1945 Constitution of Georgia (Section 2-1901 of the Code) which provides in part as follows:
"Each House shall be the judge of the election, returns, and qualifications of its members...."
It is my personal view that a Solicitor of a City Court such as the City Court of Albany would be eligible under the provisions of Article III, Section IV, Paragraph VI of the Constitution of Georgia to hold a seat in either House of the General Assembly, subject to the above pointed out exceptions as to emolument from the State, and the provisions of Article III, Section VII, Paragraph I of the Constitution, and the other qualifications necessary to hold public office in this State.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be ac<oepted as unofficial and personal.
COURTS-Judges 'The Judge of the Superior Court of Walker County could legally designate the Judge of the City Court of Walker County to act and be known as the Judge of the Juvenile Court of Walker County, in accordance with Ga. Code Ann. Sec. 24-2441.
Ron. Phil Cauthon, Assistant Director State Department of Public Welfare
OFFICIAL OPINION FA<CTS:
The Judge of the City Court of Walker County, Georgia, was in accordance with Ga. Code Ann. .Sec. 24-2441 designated by the Judge of the Superior Court of Walker County to be the Judge of the Walker County Juvenile Court.

18
The Judge of said court is considering the commitment of two abandoned children to the State Department of Public Welfare for adoption placement. QUESTION:
The question to be determined is the legality of the Juvenile Court of Walker County, with particular regard to the case of Wages v. Morgan, Ordinary, 174 Ga. 158. ANSWER:
In 1916 an Act was passed, Ga. Laws 1916, pp. 58, 60, which provided in part on page 60, that in all counties having a population of less than 60,000 the Judge of the Superior Court should designate an existing court of record to act and be known as the Juvenile Court of said county and that this should involve no additional expense nor create any new court or Judge, but would merely clothe an existing tribunal with additional powers.
In the case of Wages v. Morgan, Ordinary, 174 Ga. 158, it was held that the provision of the Act of 1916, referred to above, which made it mandatory upon the Judge of the Superior Court in a county having a population of less than 60,000 to designate an existing court of record to act and be known as the Juvenile Court of such county violated Par. 1 of Sec. 9 of Art. 6 of the then existing Constitution of this State which provided that "The jurisdiction, powers, proceedings, and practice of all courts or officers invested with judicial powers (except city courts), of the same grade or class, so far as regulated by law, and the force and effect of the process, judgment, and decree by such courts, severally, shall be uniform," this uniformity to be established by the General Assembly.
In other words, the case of Wages v. Morgan;Gecided in January 1932, was a case in which a Judge of the Superior Court of DeKalb County had designated the Ordinary of DeKalb County to act and be known as the Juvenile Court of said county, and the Supreme Court held that the said 1916 Juvenile Court Act and the said order of the Judge of the Superior Court designating the Ordinary to act as Juvenile Court Judge jointly operated to nullify and repeal the provisions of Par. 1 of Sec. 9 of Art. 6 of the Constitution of the State quoted above, and being in violation of that constitutional provision were unconstitutional and void.
In the Wages v. Morgan case, supra, the court did not indicate its views as to the constitutionality of the 1916 Act if the Judge of DeKalb Superior Court had designated the Judge of the City Court of DeKalb County to act and be known as a Juvenile Court Judge rather than the Ordinary. That question, however, does not confront us now, because in 1935 the Legislature passed an additional amendment to the Juvenile Court law, Ga. Laws 1935, pp. 399, 402, which provided that: "In all counties having a population of less than sixty thousand (60,000) the judge of the superior court may designate an existing court to act and be known as the juvenile court of said county. This shall involve no additional expense (except as may be authorized by the Board of County Commissioners or other authority controlling the fiscal affairs of such county) shall create no new court or judge, but shall merely clothe an existing tribunal with additional powers, unless the court thus designated is one of a grade or class required by paragraph 1, section 9 of article 6 of the Constitution of this State to be uniform as to jurisdiction, powers, proceedings, and practice, in which event the designation of such COU<'t shall be construed as the designation of the judge thereof to preside over a juvenile court for such county, which he shall thereupon establish and conduct as separate and distinct from any other court to which he may have been elected or appointed."
Since the City Court of Walker County is not one required hy Par. 1, Sec.

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9 of Art. 6 of the Constitution (Ga. Code Ann: Sec. 2-3701), to be uniform as to jurisdiction, powers, proceedings and practice, the Judge of the Superior Court of Walker County would be authorized to designate the Judge of the City Court of Walker County to act and be known as the Juveni1e Court of said County.
It is my opinion, therefore, that if the Judge of the City Court of Walker County has, in accordance with Ga. Code Ann. Sec. 24-2441, been designated to act and be known as Judge of the Juvenile Court of said cot;nty, that the acts of said Judge in his capacity as Juvenile Court Judge and in accordance with the laws thereunto appertaining, would be legal.
COURTS-Judges (Unofficial) A Judge Emeritus is ineligible to be a member of the General .Assembly.
January 25, 1950
Honorable Raymond A. Guest I am pleased to acknowledge your letter of January 13, 1950 in which you
request my opinion as to the eligibility of a Judge Emeritus to be a member of the House of Representatives.
Article III, Section IV, Paragraph VI of the Constitution of the State of Georgia, codified under Section 2-1606, provides:
"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."
In the case of McWilliams v. Neal, et al., 130 Ga. 733, the Supreme Court of Georgia held:
"1. Persons who hold a State office, except justices of the peace and officers of the militia, are ineligible to membership in the General Assembly of this State."
"2. But if one, by reason of holding one of the offices not within the above exception, mentioned in paragraph 7 of section 4, article 3 of the constitution of this State, at the time of his election as a member of the General Assembly, is rendered ineligible to membership in that body, the fact of his ineligibility would not work an ouster from the first office, but would only affect his right to take a seat as a member of the General Assembly."
Section 24-2601-a of the 1933 Code of Georgia provides: "Creation of office.-There is hereby created the office of judge of the superior courts emeritus." Section 24-2603-a provides:
"Appointment; resignation as judge.-The Governor shall appoint to any such position any one eligible under the provisions of this Chapter who shall advise the Governor in writing that he desires to resign from the office of judge of the superior courts and accept appointment as judge of the superior

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courts emeritus. Upon such appointment being made by the Governor, and the commission issued by the Governor, the resignation shall automatically become effective."
Section 24-2604-a provides: "A judge of the superior courts emeritus shall receive from the State o:f Georgia an annual salary equal to two-thirds of the salary provided by law to be paid by the State of Georgia to a judge of the superior co11rt at the time of the appointment of such judge of the superior courts emeritus. In addition to this salary a judge of the superior courts emeritus, shall receive from the counties of the circuit of which he had lately been judge a salary equal to two-thirds of the amounts which had been paid to him as judge by those counties at the time of his resignation as judge of the superior court and his appointment as judge of the superior courts emeritus." Section 24-2605-a provides: "Life tenure. Practicing law prohibited.-All persons appointed as judge of the superior courts emeritus, shall hold such office for life. Provided, however, that such judges of the superior courts emeritus, are prohibited from practicing law in the courts of this State or any other State or Territory, and are also prohibited from practicing as attorneys, proctors, or solicitors in any court of the United States." The above statutory provisions create the office of"Judge of the Superior Courts Emeritus" and authorize the Governor to appoint to this office anyone eligible uuder the provisions of the Judge Emeritus Act, (Ga. Laws 1945 p. 362, et seq.) and provide an annual salary and a life term for such appointee. It is my personal view that a Judge Emeritus of the Superior Court would be ineligible to serve as a member of the General Assembly of this State in view of the constitutional prohibition above cited.
COURTS--Justices of the Peace (Unofficial) 1. Costs in a case involving a warrant are not collectible until the return thereof and approved by the Superior Court. 2. If a Justice of the Peace refuses to serve in any particular case, the suit may be located in any adjoining district.
January 3, 1950
Honorable M. G. Baxter I am pleased to acknowledge your letter of December 7, 1949 addressed
to the Secretary of State which has been referred to me for attention. In the .matter of costs in a case involving a warrant to keep the peace,
under Section 76-201 of the 1953 Annotated Code, I would suggest that you read the case of Levar v. The State, 103 Georgia Reports, page 42 wherein the Supreme Court of Georgia held that costs cannot be collected until affer the return thereof and the same passed on by the Superior Court.
The Supreme Court also held as follows: "To sum up, our conclusions are, (1) that it is the duty of justices of the peace to 1eturn all peace bonds taken by them to the superior court; (2) that the question as to who shall pay the costs therein is to be determined by the judge of the superior court, after proper investigation into the merits of the case; and (3) that the amount of the costs to be taxed in these cases as due to magistrates and constables is to be arrived at by reference to the fee~bills prescribing their eompensation in criminal cases." 'The last item in the Court's ruling above tells you how to :figure the costs in these cases.

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Section 24-1008 of the 1933 Annotated Code provides: "Where there is no justice of the peace in any district where a defendant resides, or there is one and he refuses to serve generally or in any particular case, the suit may be located in any adjoining district." This section provides that if a justice of the peace refuses to serve in any particular case, the suit may be located in any adjoining district. However, it is well to point out that a justice when presented with a fluit where it is stated that the other justice refuses to serve, should satisfy himself by taking the matter up with the justice in the adjoining district and actually ascertain if the justice refuses to act in the matter.
COURTS-Ordinaries (Unofficial) Jurisdiction of the Ordinary Court in traffic cases is secondary to that of the Superior Court.
March 16, 1950
Judge Walter F. Owen Ordinary, Cherokee County
I am pleased to acknowledge your letter of March 10, 1950 in which you request my opinion as follows:
"I am writing for an opinion on State Patrol cases, for driving without a license, no brakes, no lights, speeding and driving UI. Just what is the Ordinary's jurisdidion in these cases.
"There have been several cases carried before the Superior Court Judge and the fines do not pay the costs, whereas, if they were. brought 'before me it would be of benefit to the parties and also be of help to the County.
"We have much complaint here about this. I do not want to do any thing wrong, b<Jt would like to have your opinion if this is not asking too much."
Section 92A-501 of the 1933 Annotated Code, Pocket Supplement, provides as follows:
"The jurisdiction of the courts of ordinary, of municipal courts and police courts of the incorported towns and "cities of this State, are hereby enlarged and extended so that said courts, acting by and through the judge or presiding officer thereof, shall have the right and power to conduct trials, receive pleas of guilty and impose sentence upon defendants violating the penal provisions of this Title, and upon defendants violating any and all other criminal laws of this State relating to traffic upon the public roads, streets and highways of this State, where the penalty for the offense does not exceed that of the grade of misdemeanor, in the manner required by law." (Underscoring supplied.)
Section 92A-502 provides as follows: "The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdemeanor cases arising under this Title, and other traffic laws of the State, in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts in incorporated cities and municipal court judges, for offenses arising within their respective jurisdiction." (Underscoring supplied.)
Section 92A-504 provides as follows:
"No court defined in this Chapter shall have the power to dispose of misdemeanor cases as herein provided, except the defendant shall first waive in writing a trial by jury. If defendant ,shall wish a trial by jury, he shall notify the court, and if reasonable cause exists he shall be immediately bound over to

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the court in such county having jurisdiction to try the offense wherein a jury may be rmpaneled."
The jurisdiction of the courts of ordinary was enlarged and extended by the above statutory provisions so that said courts would have the right and power to conduct trials, receive pleas of guilty and impose sentence upon defendants violating the penal provisions of the Public Safety A::t contained in Title 92A of the 1933 Annotated Code of Georgia, Pocket Supplement, and upon defendants violating any and all other criminal laws of this State relating to traffic upon the public roads, streets and highways of this State, where the penalty for the offense does not exceed that of a misdemeanor, in those counties of the State in which there is no city court or county court and provided that the defendant shall first waive in writing a trial by jury.
The answer to your question concerning the Superior Court is found in the case of Smith v. The State, 62 Ga. App. 733, in which the Court of Appeals of Georgia held as follows:
"1. Superior courts of this State have concurrent jurisdiction with all inferior courts of misdemeanors, as defined in the Code, 24-2615. 'The superior courts have ever in our history been the great reservoir of judicial powerthe aula regis, as it were-in which the judicial powers of the State were vested, and however other courts might be erected as a relief to it, to take cognizance of minor matters, the practice has been uniform to retain in this tribunal concurrent, and generally, even supervisory power over them.'
"2. Ga. L. Ex. Sess. 1937-38, pp. 558-562, did not take from the superior courts jurisdiction to try misdemeanor violations of traffic laws, and vest such jurisdiction in courts of ordinary or municipal courts, as the case might be, exclusively as against the superior courts; and a defendant has no right to demand that an indictment returned by a grand jury be abated tecause he has not first been tried in a court of ordinary."
.Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COURTS--Ordinaries (Unofficial) The Courts of Ordinary have jurisdiction to try cases arising under the Statute dealing with the limitation as to size of vehicles and weight of load.
August 28, 1950
Honorable James T. Manning Solicitor-General Blue Ridge Circuit
I am in receipt of your letter of August 18, in which you ask if Section 92A-502 of the Supplement of the 1933 Code of Georgia as codified from the Acts of 1937-38 Extra Session, pages 558 et seq. gives the County Ordinary jurisdiction to try violators of the "gross weight statute for motor vehicles," found in Section 68-405 of the Supplement of the 1933 Code of Georgia as codified from the Acts of 1941, page 449, et seq.
The Constitution of the State of Georgia of 1945 provides in Section 2-4102 of the Code, among other things:
"The Court of Ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, ..."

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Section 92A-501 of the Code of Georgia states: 'Jurisdiction of courts extended. The jurisdiction of the courts of ordinary, of municipal courts and police courts of the incorporated towns and cities of this State, are hereby enlarged and extended so that said courts, acting by and through the judge or presiding officer thereof, shall have the right and power to conduct trials, receive pleas of guilty and impose sentence upon defendants violating the penal provisions of this Title, and upon defendants violatir.g any and all other criminallaws of this State relating to traffic upon the public roads, streets and highways of this State, where the penalty for the offense does not exceed that of the grade of misdemeanor, in the manner required by law." Section 92A-502 of the Code of Georgia provides as follows: "Jurisdiction of court of ordinary. The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdemeanor cases arising under this Title, and other traffic laws of the State, in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts in incorporated cities and municipvl court judges, for offenses arising within their respective jurisdiction.'' In Section 92A-504 it is provided that for a defendant to be tried as provided in the foregoing sections he must waive in writing a trial by jury. Annotated Code Supplement 92A-240, reads as follows: "It shall be the further duty of said Georgia State Patrol to strictly enforce the statute laws of this State as to the length, size and weight of motor vehicles and trailers upon the highways.''
Annotated Code Supplement 92.A-247, reads as follows:
"The Uniform Division of the Department of Public Safety shall perform all the duties in checking motor vehicles in this State to see that they are properly licensed and not overloaded, and in enforcing the provisions of the laws of Georgia requiring the proper licensing of motor vehicles.''
Code Section 68-405, Annotated Oode of Georgia Supplement were taken from Acts of 1941, page 449-450. This Code Section deals with the limitation as to size of vehicle and weight of load. Tilis being a statute to he enforced by the State Highway Patrol and in connection with the other laws above quoted it is my opinion that the Ordinaries would have jurisdiction to try cases made under Code Section 68-405 Supp. of the Annotated Code of Georgia, 1933.
COURTS-Ordinaries (Unofficial) In cases of a vacancy in the sheriff's office, the ordinary shall appoint some qualified person to discharge the duties of sheriff until the vacancy is filled by a special 'election.
September 21, 1950 Honorable W. T. Davis, Ordinary Calhoun County
I am in receipt of your letter of September 18, in which you ask if the Ordinary has the authority to appoint an acting sheriff and then call an election to fill the vacancy in the office of sheriff.
The answers to your questions are fcund in the following code sections: Section 24-2803 of the 1933 Annotated Code of Georgia provides: "Vacancies are filled and the after-proceedings are as in cases of vacancies

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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 election."
Section 24-2704 of the 1933 Annotated Code of Georgia 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 24-2707 of the 1933 Annotated Code of Georgia provides: "As soon as a vacancy occurs, or in anticipation of it, said ordinary must appoint some qualified person to discharge the duties of clerk until the vacancy is filled." Under the provisions of the ahove cited sections of the Code, when a vacancy occurs in the office of sheriff, the ordinary of the county where the vacancy occurs shall give notice in one or more of the public newspapers of said county and at the courthouse and at three or more of the most public places of said county, twenty days previous to the day of a special election for the filling of such vacancy, which shall be set by him. As soon as a vacancy occurs the ordinary must appoint some qualified person to discharge the duties of sheriff until the vacancy is filled by said special election,
In the event of a :tailure of the ordinary to appoint some person to discharge the duties of the office of sheriff when a vacancy exists, then the coroner of the county shall act as sheriff until the vacancy is filled by the special election.
COURTS-Ordinaries (Unofficial) Dealers in explosives must get a license from the Ordinary who receives a fee of 25c for registering the dealer.
April 3, 1950
Honorable J, M. Tomlinson Ordinary, Dougherty County
This will acknowledge receipt of your letter of March 27, 1950 which reads in part as follows:
"I would like for you to tell me where a person gets a license to sell explosives, who issues this license, and H the duty of the Ordinary, what his fee is for issuing the license."
The statutes relating to explosives are found i:t,1 Chapter 88-8 of the Annotated Code. 'That Chapter is somewhat vague as to dealers in explosives, but I have reached the conclusion that they are in exactly the same position as persons who purchase explosives. It is my opinion that they must register with the Ordinary and that the Ordinary would be entitled to the same fee of twenty-five cents (25c) which he gets from a person who desires to purchase explosives.
The purpose of Chapter 88-8 is to control and keep track of dangerous explosives in this State. A dealer is certainly a person who owns, possesses and controls explosives within the meaning of Section 88-801, and such a person is required, under the provisions of the Chapter, to register with the Ordinary.

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COURTS-Sheriffs (Unofficial) 1. The fee that the Sheriff gets for summonsing witnesses for the State is to be paid out of the County fund 2. (a) The Sheriff is entitled to jail fees in both felony and misdemeanor cases, to be paid from County funds. 2. (b) The County is to be reimbursed from the insolvent cost fund for any jail fees paid the Sheriff in misdemeanor cases.
April 10, 1950
Honorable Robley D. Smith Attorney at Law
I am pleased to acknowledge your letter of April 4, 1950 in which you ask my opinion as follows:
"I will deeply appreciate it if you will be kind enough to give me your opinion with regard to the following items:
"A. In the March bill of the sheriff is an item 'Summonsing 121 witnesses before the grand jury, $121.00.' I recognize that the sheriff is entitled to compensation of $1.00 for summonsing witnesses. T1his is fixed in the Act of 1945, page 223. The real question is whether this should be paid from the insolvent cost fund or from the County fund. In the case of Polk County vs. Crocker, 112 'Georgia, page 152, the Supreme Court held that there is no law authorizing the County authorities to pay from the County funds fees to the sheriff for summonsing witnesses to appear before the grand jury. This decision has never been overruled and I can find no statute which changes this rule.
"I will appreciate it if you will give me your opinion as to whether the sheriff should be paid from the insolvent cost fund or the County funds.
"B. The Act of 1945 above referred to contains the following provision: '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.' I recognize the fact that the fees in felony cases are chargeable against the County and should be paid from County funds. In misdemeanor cases it seems to be the theory of the law that all costs are chargeable against the insolvent cost fund. I recognize that 'turnkey fees' have been construed to be, by the Supreme Court, 'jail fees'. Does the Section above quoted require the County to pay all jail fees monthly whether the case i.s a misdemeanor or a felony?
"In the case of Lumpkin 'County vs. Davis, Sheriff, 185 Georgia, page 393, the court, on page 395, holds that turnkey fees are part of the costs chargeable against defendant in criminal case;:; collectible from them or from fines and forfeitures in insolvent cases. Under that same headnote the court also holds: 'While Code Section 24-2823 contains the provision that "whenever jail fees are chargeable to the county, the same shall be paid monthly; provided that no local law regulating county jails or fixing salaries for jailers, or their fees, shall in any way be affected or repealed by this section," and Section 77-103 contains identical language without the proviso, these statutes do not themselves impose upon any county any liability for jail fees!' '
"I would like your opinion as to: "(1) Whether turnkey fees in misdemeanor cases are under any circumstances chargeable against the county, and
"(2) If you think they are chargeable against the county, is the county entitled under Section 27-2920 of the temporary supplement of the Code of Georgia of 1949, entitled to subrogation to the end that the fees so paid can be collected from the insolvent cost fund."
The question relating to the sheriff's fee for summonsing witnesses before

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the Grand Jury has been answered by the Court of Appeals in the case of Floyd County v. Johnson, Sheriff, 80 Ga. App. 785-789 (Decided February 2, 1950).
The Court in this case held as follows: "The first question is answered in the affirmative, under the provisions of Code (Ann. Supp.) 24-2823. It is provided in said section, with respect to fees for sheriffs in criminal cases, in part, as follows: 'Summonsing each witness . . . $1.00 . . . Mileage fees, fees for executing criminals and for guard, fees for subpoenaing witnesses for the State as hereinbefore provided, shall be paid by the county.' We think that the meaning of the portion of the Code next above quoted is that the sheriff is entitled to charge and collect a fee of $1 for each witness for the State summoned by him to appear either before the grand jury or petit jury, and that the county is authorized and shall pay such fee to the sheriff. It is contended by the plaintiff in error, F'loyd County, that the decision of the Supreme Court in Polk County v. Crocker, 112 Ga. 152 (37 S.E. 178) which held, 'There is, in this State, no law which requires or authorizes county authorities to pay from the county funds fees to a sheriff for summoning witnesses to appear before the grand jury'- is controlling in the present case. The law in effect at the time that decision was rendered, on October 31, 1900, did not authorize or require a county to pay from county funds the fees of a sheriff for summoning witnesses to appear before a grand jury or petit jury. But the General Assembly in 1945 (Ga. L. 1945, p. 221; Code, Ann. Supp., 24-2823) amended the law with respect to the sheriff's fees by providing, among other things, 'fees for subpoenaing witnesses for the State as hereinbefore provided, shall be paid by the county.' Witnesses summoned by the sheriff to appear before the grand jury are witnesses for the State. This court, in Dade County v. Lyemance, 27 Ga. App. 420, 425 (108 S.E. 825), ruled that the following provision of 1133 of the Penal Code of 1910-'the clerks of the superior courts shall be entitled to charge and collect the following fees for official duties performed by them, to wit: . . . For subpoenas, (Jach 15 cents'was broad enough to include all subpoenas issued by the clerk, whether they be grand jury or petit jury subpoenas. The trial court in the present case did not err in the ruling as contained in paragraph 1 of the judgment with respect to the sheriff's fees for summoning witnesses before the grand jury." You will note that the Court in the above cited case held that the ruling in the Polk County v. Crocker case, 112 Ga. 152 cited by you in your question does not apply since the Act of 1945 (Ga. L 1945, page 221) (Georgia Code Annotated, Pocket .Supplement, Section 24-2823), and that since the 1945 Act sheriff'.s fees for subpoenaing witnesses for the State shall be paid by the County. Answering your first question relative to jail fees, your attention is called to the Amendment of Section 24-2823 of the Code by the Act of 1945, page 221, which provides, "The jail fees herein provided shall be paid monthly by the county, provided that local laws regulating county jails or fixing salaries for jailers or their fees shall not be repealed by this provision." (Underscoring supplied.) Under this Code Section prior to the Act of 1945, the provision read, "Whenever jail fees are chargeable to the county, the same shall be paid monthly: Provided, that no local law regulating county jails or fixing salaries for jailers, or their fees, shall in any way be affected or repealed by this section.'' (Underscoring SUpplied.) You will note in the case of Lumpkin County v. Davis, Sheriff, 185 Ga. 395, which you cite in your letter, that the Court in making its rules specifically called attention to the word "whenever" by setting it out in italics. You will also

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note that in the section as amended by the Act of 1945, the word "whenever" was eliminated and the language is specific in providing that the fees provided in said Code Section shall be paid monthly by the County with the exception that loeal laws regulating county jails or fixing salaries for jailers or their fees shall not be repealed by this provision.
You will also note that in the amended Section 24-2823, there is a new paragraph which provides as follows:
"Sheriffs shall be entitled to receive the fees provided for in this section for all arrests in all criminal cases, tried or otherwise disposed of in the superior, city and Ordinary's court."
It would appear that under the amended Section 24-2823 of the Code that a Sheriff is entitled to jail fees in felony and misdemeanor cases from county funds in view of the language of the Code which provides,
"The jail fees herein provided shall be paid monthly by the county . . ." and there are no exceptions as to felony or misdemeanor cases stated therein.
Your question 2 relating to subrogation under Code Section 27-2920 of the 1949 Code of Georgia Annotated, Temporary Supplement, is answered in the affirmative.
COURTS-Solicitors General Those fees of the Solicitors General for services in cases not mentioned, at the discretion of Governor, not exceeding $50.00, are not paid by the State.
August 24, 1950 Honomble B. B. Thrasher, Jr. State Auditor
OFFICIAL OPINION FACTS:
A Solicitor Geneva! of Georgia has requested payment by the State of four items for services, approved by the Governor, under that part of Section 24-2904 of the 1933 Code of Georgia Annotated which reads: "For services not mentioned, where the State is an interested party, at discretion of Governor, not exceeding $50.00
QUESTION: Are these fees to be paid by the State of Georgia?
ANSWER: Originally the Solicitor General by virtue of his office was also Attorney
General and the fees were the same (See Cobb's Digest of Georgia Laws). In the Georgia Code of 1863 Section 1578, under the general heading of Officers Connected with the Judicial Department, the salaries of these officers, including that of the Solicitor General of the several circuits, are listed. "The fees of such officers are as follows: 1. Solicitor General" and his specific fees are given.
Secti0n 1580 of the Code of Georgia of 1863 reads as follows: "The Solicitor General, who, by virtue of his office, is Attorney General, has the following fees:-
For every written opinion he is legally required to make ______ ------$25.00 For prosecuting a Solicitor General, the payment of his necessary
expenses, and ------------------------------------------------$50.00 For services in any case where the State has an interest, and his serv-
ices are required, the payment of his necessary expenses, and ____ $50.00 For suits for and collection of money, on account of the State, out of his

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circuit, when litigated, ten percent. upon amount collected, and five percent. if not collected-if not litigated fees of Solicitor General.
For any services performed, for which a fee is not prescribed, the Governor may pay him what he deems reasonable and just, and report the same to the General Assembly."
This section of the Code is given to illustrate the fact that the Solicitor Generals, in addition to their duties as prosecuting attorneys of their respective eircuits, also formerly represented the State in cases "where the State has an interest" or "where the State is interested party," duties now performed by the Attorney General. It is my opinion that these expressions were used in a restricted sense, as wher the State of Georgia was a party to pending litigation, or directly affected by the outcome of a case; and that the expressions did not include those cases generally prosecuted in the name of the State, by the Solicitors General in their respective circuits.
The present fees of the Solicitors General (Section 24-2901 of the 1933 Annotated Code of Georgia) are embraced ir. a number of separate acts, and that particular fee for "Services in cases not mentioned, where the State is interested party, at discretion of Governor, not exceeding $50.00," was first codified in the Code of 1863 when the Solicitor General was also, by virtue of his office, Attorney General, and is found in each succeeding Code of Georgia in the same language.
It is my opinion that to authorize the State to pay any of his fees, the General Assembly would have to authorize such payment, and payment could not be based upon mere inference. The only fees of Solicitors General which the General Assembly has specifically authorized the State to pay are for services in the Appellate Courts. The act approved February 23 ,1850, (Acts 1849-1850 page 375), and being an act to compensate Solicitors General for service rendered in the Supreme Court in criminal cases, provided: "And be it further enacted, That upon the presentation of the certificate of the Clerk of the Supreme Court .of the trial of the case or cases, and the rendition of the service, the Governor shall draw his warrant in favor of the Solicitor or Solicitors, in accordance with the provisions of the first section of this Act." While these fees are listed in Section 24-2904 of the 1933 Code of Georgia and the provision for payment by the State in Section 24-2906; as herein before stated, the fees and authority for payment by the State were both included in the same Act of the General Assembly.
Since the General Assembly has not authorized the payment of these fees by the State I conclude that they should not be paid.
COURTS-Superior Court Clerks (Unofficial) Where a number of persons appear as grantees in an instrument recorded, the clerk of the Superior Court is entitled to a fee of 10 cents for each entry made in both the direct and reverse index.
August 11, 1950
Honorable Wilda A. Tostensen Deputy Clerk Superior Court, Glynn County
I am in receipt of your letter of recent date in which you ask if the Clerk of the Superior Court would be entitled to a fee of 10 cents for each entry made in the direct and reverse index when recording an instrument containing the names of several grantees and requiring an entry in the direct and reverse index for each such grantee named.

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The answer to your question is found in Section 39-703 of the Code of 1933, which was repealed by an Act approved F'ebruary 7, 1950, (Ga. Laws 195,0, pages 107, 108) and a new Section enacted in lieu thereof, which reads as follows:
"For entering such execution as aforesaid upon the general execution docket, the clerk shall be entitled to a fee of fifty (50) cents, t0 be taxed in the bill of costs, and also a fee of 10 cents for each entry in the filing docket, both direct and reverse, in entering on such filing docket and index each deed or mortgage or other liens or instruments."
Therefore, it is my opinion that where an instrument is recorded, which names a number of grantees, requiring an entry in the dire,ct and reverse index to the filing docket of each grantee named, the clerk of the Superior Court is entitled, under the above quoted provision of law, to a fee of 10 cents for each entry made in both the direct and reverse index.

COURTS-Superior Court Judges' Retirement Fund of Georgia 1. A person who has served continuously as a Judge of the Superior Court for twenty-five years prior to the passage of the 1950 Act is eligible for appointment as a Judge, Emeritus. 2. Such person is not required to make any further payments into the Retirement Fund.

April 18, 1950

Honorable George B. Hamilton, Trustee Superior Court Judges' Retirement Fund of Georgia FACT'S:
OFFICIAL ;OPINION
"Honorable C. J. Perryman, Judge, Superior Court, Toombs Circuit, Thomson, Georgia, has continuously made payments into the Superior Court Judges Retirement Fund since the effective date of the act in 1945.
"The Judge 'believes that he is now exempt from making further payments into said fund since he has served continuously as Judge of said circuit for more than twenty five years prior to February 16, 1950 at which time the Superior Court Judges Retirement Act of 1945 was amended. Section 5 of the 1950 Act, Georgia Laws, page 287, under which the Judge claims exemption from further payments into said fund provides as follows:
'Be it further enacted by the authority aforesaid that any person who has prior to the passage of this Act served continuously as judge of the superior , court for a period of twenty-five years shall be eligible for appointment as a judge of the superior courts, emeritus, and shall be so appointed by the Governor upon his written application for ,such appointment and upon his appointment shall receive from the State of Georgia an annual salary equal to twothirds of the salary provided by law to be paid by the State of Georgia to a judge of the superior court at the time of the appointment of such judge of the superior courts, emeritus. Such person shall not be requir2d to make any payments into the superior court judges' retirement fund of Georgia.' QUESTION:
1. Is this Judge eligible for appointment as Judge, Emeritus'? 2. Does he have to make any more payments? ANSWER: It is my opinion that under Section 5 of the 1950 Act (Georgia Laws, 1950, page 287) that any person who has prior to the passage of the 1950 Act, above cited,' served continuously as judge of the Superior Court for a period of

" 5',1 .1 ,~; ~ (\\,__ _jL .~\.",

-..

30
twenty-five years shall be eligible for appointment as a Judge of the Superior Courts, Emeritus, and that such person is not required to make any payments into the Superior Court Judges' Retirement Fund of Georgia,
It is my further opinion, assuming that Judge Perryman has served continuously as Judge of the Toombs Circuit for more than twenty-five years prior to February 16, 1950, at which time the Superior Court Judges' Retire. ment Fund Act of 1945 was amended by the Act of 1950, that he is exempt from further payments into said Fund, under Section 5 of the 1950 Act, above cited.
COURTS-Superior Court Judges' Retirement Fund (Unofficial) When a former judge of a Superior Court is disqualified :for appointment to the office of Judge of the Superior Court, Emeritus, he may withdraw contributions made by him to the fund.
May 12, 1950 Honorable C. W. Worrill Judge, Court of Appeals of Georgia
I am pleased to acknowledge your letter of May 8 asking my opinion as to your right to withdraw contributions made under the .Superior Court Retirement Act of 1945 (Georgia Laws 1945, page 362.).
From your letter I understand that, after the passage of this Act and until your resignation on June 8, 1949 and subsequent appointment as Judge of the Court of Appeals, you made substantial contributions io the Superior Court Judges Retirement Fund in the manner provided by that Act. You wish an expression of my opinion not only as to your right to withdraw these funds but with respect to your future eligibi.Jity to retire as a Judge of the Court of Appeals.
Section 15 of the Act of 1945 (codified as Section 24-2615a, Georgia Code Anno. Cum. Pkt. Pts.), provides:
"24-2615a. Same; withdrawals on resignation, death, or disqualification of judge.-Any judge who resigns or otherwise becomes disqualified to hold said office shall be entitled to withdraw the total amount, without interest, which he has paid to said fund; or if any judge dies the total amount, without interest, paid by him to said fund shall be paid to his widow and if no widow to his personal representative. However, in the case of any judge receiving benefits from this fund at the time of his death has not received the total amount, without interest, paid by him to said fund, his widow, and if there be no widow his personal representative, shall receive from said fund the remainder of his payments to said fund."
The above quoted Section refers to disqualification to hold the office of Judge of the Superior Court Emeritus. It is my opinion that you are disqualified for appointment as to the office of Judge of the Superior Court Emeritus at the present time. It would therefore appear that you are clearly entitled
to withdraw the contributions made by you under the Act of 1945.
In 1943, the Legislature created the office of Judge Emeritus, making eligible for appointment Judges of the Court Of Appeals having certain qualifications. The office of Judge Emeritus as created by the Act of 1943 is an entirely different office from that of Judge of the Superior Court Emeritus created by the Act of 1945. The Salary of a Judge Emeritus appointed under the Act of 1943 is in no way dependent upon any contributions to a trust fund as is the case with Judges of the .Superior .Court Emeritus.
By Act approved February 25, 1949, the eligibility requirements for ap-

31
pointment as Judge Emeritus were expanded to include Judges of the Court of Appeals having unbroken judicial service for a period of twenty years as Judges of the Superior Court or the Court of Appeals. In the 1949 amendment, however, no effort was made to limit eligibility for appointment as Judge Emeritus to Judges who had elected while on the Bench of the Superior Court to participate in the retirement fund created thereby.
I am therefore of the opinion that the withdrawal of your contributions made while a Judge of the Superior Court to Superior Court Judges Retirement Fund will have no bearing upon your qualification for appointment as Judge Emeritus under the Act of 1943 creating this office, as amended in 1949.

COURTS-Witness Fees (Unofficial) Where a revenue agent is on a salary and attends court in a case involving the duties for which he is paid a salary, he is not entitled to witness fees while attending court, even though the attendance is out of the county of his residence.
September 14, 1950 Honorable R. M. Bethel Clerk, Superior Court Upson County
I am in receipt of your letter of August 29, 1950, in which you ask if a State Revenue Agent is entitled to witness fees when attending court in a county other than that of his residence.
Where a revenue agent is on a salary and attends court in a. case involving the duties for which he is paid a salary, he is not entitled to witness fees while attending court, even though the attendance is out of the county of his residence.

COURTS-Warrants The Sheriff is not required to execute warrants issued by presidents of Courts-Martial and he is not entitled to fees for executing the same.

Major General Ernest Vandiver, Jr. The Adjutant General, Military Dep.artment

March 1, 1950

OFF'ICIAL OPINION QUESTION:
Are the sheriffs in the respective counties of Georgia entitled to fees :for executing warrants of arrests issued by the presidents of Courts-Martial, and is it mandatory for the sheriffs to serve the same'? ANSWER:
It is noted in Code Section 24-2823 of the Annotated Code of Georgia of 1933 (Supplement) a long list of fees that are due the sheriff are set forth, and this code section further states that sheriff,s shall be entitled to receive the fees provided for in this section for all arrests in all criminal cases, tried or otherwise disposed of in the superior, city and ordinary's court.
Since the arrest warrants are returnable to the court-martial board, it appears to me that the sheriff would not be entitled to any fees for serving such warrants. In view of the fact that there is no statutory authority granted the sheriff for remuneration of his work, I am compelled to take the position that it would not be mandatory on him to serve these warrants.

32
It is further noted that Code Section 86-1204 states: "86-1204. Convicts; disposition of.-When the punishment inflicted by courts-martial is, or includes, imprisonment, the per,son so convicted shall be delivered by th~ military authorities to the sheriff of the county wherein such conviction was had, together with a copy of the sentence of the court, to be dealt with as if such conviction had been had in the superior court of said county; the cost of such imprisonment to be paid as provided for those convicted in the superior court." And Code Section 86-1206 states: "86-1206. Fines, forfeitures, and penalties; how enforced; disposition of.All fines, forfeitures and penalties assessed by any court-martial shall be collected by execution issued under the hand of the president of the court, and directed to the sheriff, and returnable to the superior c,ourt of the county in which the delinquent resides, and shall have the same force and effect as a civil process of the same character. All moneys collected from such fines and forfeitures shall be paid into the military fund, except those collected by the execution of summary court-martial, which may be paid to the company or organization treasury." These two code sections make it mandatory for the sheriff to take action, and the fees are paid as if the man had been convicted by the superior court. In these situations I believe the Military Department would be liable for the fees, due to the fact that States agencies are not exempt from court cost.
CRIMES AND PUNISHMENT-Mass Picketing (Unofficial) It is unlawful for 'any person to engage in mass picketing in such manner as to interfere with employment or work.
Honorable Thomas M. Gunter This will acknowledge receipt of your letter of May 12, 1950, with reference
to union strikers' picket lines. Georgia passed a law in 1947 pertaining to the interference with employ-
ment or work and picketing, which is codified as Chapter 54-8 of the Code, and any person who violates any of the provisions of said chapter is guilty of a misdemeanor under Section 54-9921.
Section 54-803 reads as follows: "It shall be unlawful for any persor, to engage in mass picketing at or near any place where a labor dispute exists, in such number or manner as to obstruct or interfere with, or constitute a threat to obstruct or interfere with, the entrance to or egress from any place of employment, or to obstruct or interfere with, or constitute a threat to obstruct or interfere with, free and uninterrupted use of public roads, streets, highways, railroads, airports or other ways of travel, transportation or conveyance."
CRIMES AND PUNISHMENT-Passing Worthless Checks (Unofficial) In prosecution for passing worthless checks, the intent to defraud cannot be presumed until it is shown that there were insufficient funds in the bank to pay it at the time it was presented for payment.
February 16, 1950
Mr. Melvin E. Little I am pleased to acknowledge receipt of your recent letter, asking if the
drawer of a check who has a bank account but has insufficient funds to cover s'aid check is subject to criminal prosecution.

33

Under the Constitution and laws of this State, the Attorney General is

prohibited from rendering official opinions to anyone other than the Governor

and heads of the various State Departments. However, it is a pleasure for me

to refer you to Section 13-9933 of the 1933 Georgia Code Annotated, which is

applicable to your question:

,, '

"Any person who, with intent to defraud, shall make, or draw, or utter, or

deliver any check, draft or order for the payment of money upon any bank,

or other depository knowing at the time of such making, drawing, uttering or

delivering that the maker or drawer has not sufficient funds in or credit with

such bank, or other depository, for the payment of such check, draft or order

upon its presentation, shall be guilty of a misdemeanor. The making, draw-

ing, uttering, or delivering of such cherk, draft, or order as aforesaid shall

be prima facie evidence of intent to defraud. The word 'credit' as used herein

shall be construed to mean an arrangement or understanding with the bank

or depository for the payment of such check, draft or order."

In the headnote of the case of Crane v. The State, 78 Ga. App. 806, the

court said:

"On a prosecution under Code Section 13-9933, for passing worthless checks,

the intent to defraud ,cannot be presumed until it is shown by the evidence

that the defendant did not have sufficient funds in or credit with the bank

upon which tha check was drawn to pay it at the time it was presented for

payment.''

CRIMES AND PUNISHMENT-"Peeping Tom'' (Unofficial) It is unlawful to be a "Peeping Tom" in Ga.
February 1, 1950 Honorable M. E. Culligan, Assistant Attorney General, Department of Justice, New Orleans 16, Louisiana
I am pleased to acknowledge reciept of your recent letter asking if Georgia has what is commonly called a "Peeping Tom" statute. Chapter 20 of Title 26 of the 1933 Georgia Code Annotated is headed, " 'Peeping Tom' Or Eavesdropper," and contains the following sections:
26-2001. "It shall be unlawful for any person or persons to be an eavesdropper or a 'Peeping Tom' on or about the premises of another, or to go about or upon the premises of another for the purposes of becoming an eavesdropper or a 'Peeping Tom.'
26-2002. "The term 'Peeping Tom', as used in this Chapter, means one who peeps through windows or doors, or othei' like places, on or about the premises of another, for the purpose of spying upon or invading the privacy of the persons spied upon, and the doing of any other acts of a similar nature, tending to invade the privacy of such persons."
26-2003. "Nothing in this Chapter shall prevent duly constituted officers of the law from performing their official duties in ferreting out offenders or suspected offenders against the law, or in secretly watching a person suspected of vioJ.ating the laws of the State or any municipality therein, for the purpose of apprehending such suspected violator."
26-2004. "Any person who shall violate the provisions of this Chapter shall be guilty of a misdemeanor."
These sections were enacted into the Georgia law by the 1919 Session of the General Assembly.

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CRIMES AND PUNISHMENT-Wearing Emblems of Fraternal Organizations (Unofficial)
It is a misdemeanor to wear or use the emblem of any benevolent, fraternal, social, humane, or charitable organization unless entitled to do so under the laws of the organization.
January 27, 1950 Major Elmo Prescott
I am pleased to acknowledge your letter of January 20, 1950 requesting information as to the Georgia and Federal laws relative to the wearing of emblems of fraternal organizations.
Section 106-9905 of the 1933 Code of Georgia provides as follows: "Any person ~ho shall wear a badge, button, or other emblem, or shall use the name or claim to be a member Of any benevolent, fraternal, social, humane, or charitable organization which is entitled to the exclusive use of such name and emblems under section 106-201, either in the identical form or in such near resemblance thereto as to be a colorable imitation nf such emblem or name, unless entitled to do so under the laws, rules and regulations of such organization, shall be guilty of a misdemeanor." Section 106-201 of the 1933 Code of Georgia provides as follows: "No person or organization shall assume, use, or adopt, or become incorporated under, or continue to use the name and style or emblems of any benevolent, fraternal, social, humane, or charitable organization previously existing in this State, and which has been incorporated under the laws of this or any other State, or of the United States, or a name and style or emblem so nearly resembling the name and style of such incorporated organization as to be a colorable imitation thereof. In all cases where two or more of such societies, associations, or corporations claim the right to the same name, or tw() names substantially similar as above provided, the organization which was first organized and used the name, and first became incorporated under the laws of the United States or of any State of the Union, whether incorporated in this State or not, snail be entitled in this State to the prior and exclusive use of such name, and the rights of such societies, associations, or corporations, and of their individual members shall be fixed and determined accordingly." In the case of Faisan et al. v. Adair et al., 144 Ga. 797, the Supreme Court of Georgia held: "Equity will enjoin individuals, or a corporation, that are using the name, insignia, and emblems Of an existing benevolent and fraternal association to the injury of the latter." I am not familiar with any Federal statutes on the subject. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.

EDUCATION-Board of Regents The Hoard of Regents may carry workmen's compensation insurance to cover liability.

Honorable L. R. Siebert Regents of the University System of Georgia

April 6, 1950

OF'FICIAL OPINION FACT'S:
"A problem has arisen in connection with carrying by the Board of Regents

35
of workmen's compensation insurance covering employees of the University 8ystem and we would appreciate your advice in this matter.
"The faets are substantially as follows: It was brought to our attention that the General Assembly on March 20, 1943, (Georgia Laws 1943, Page 401 through 403) passed a statute requiring all departments of the State of Georgia to come under the Workmen's Compensation Law. Pursuant thereto on April 13, 1949, the Regents of the University System of Georgia entered into a contract with Dunlap and Company, an insurance firm of Atlanta, for the complete coverage of aH employees in the University System of Georgia with workmen's compensation insurance.
QUESTION:
"I shall appreciate it if you will advise me whether the regents may make a contract for the coverage of all employees in the University System with workmen's compensation insurance to cover this statuary liability.
ANSWER:
In 1943 (Georgia Laws 1943, page 401, 402) the Workmen's Compensation Act was amended so that "employer" as defined in the Act included "the State of Georgia and all departments thereof." The. Board of Regents under the Constitution of Georgia is classified as a Department of the State.
Undoubtedly prior to 1943 there would be a grave question as to the constitutionality of the Regents carrying workmen's compensation insurance. In my opinion any carriage prior to 1943 would have been in the nature of a gratuity and therefore unconstitutional. It is my understanding that there are prior opinions to that effect.
Subsequent to the adoption of the 1943 amendment, the Supreme Court of Georgia had before it in two cases the question of the constitutionality of the Act in its application to departments of the State. State Highway Depart ment of Georgia v. Bass, 197 Ga. 356, decided February 15, 1944, and State Highway Department of Georgia v. Turner, 198 Ga. 795, decided January 8, 1945. In these cases the various constitutional objections to a department of the State being liable for workmens' compensation were made and determined in favor of the Workmen's Compensation Act. The very question of gratuity was raised in those cases. The Court in State Highway Department v. Bass pointed out the difference between liability required under the statute and liability which was simply voluntarily assumed as in California where a contrary decision had been reached. As a matter of fact, the Court even upheld the retroactive application of the statute.
In my opinion under the statute and the decisions upholding its validity, there is a statutory liability imposed on the Board of Regents and I can see no possible objection to the insuring against statutory liability held to be constitutional. There can be no question of gratuity under the previous decisions and also because Regents would be paying for services performed the same as the payment of bond premium.
Therefore, I reach the conclusion and it is my opinion that, subject to budgetary regulations of the State Budget Bureau, the Board of Regents of the University System of Georgia could, if in their opinion they deemed it advisable and to the best interest of the University System, carry workmen's compensation insurance to cover liability arising under the provisions of the Workmen's Compensation Act of Georgia.

36
EDUCATION-County Board 1. A decision by the County Board as to the consolidation .of schools is appealable to the State Board of Education. 2. A selection by the County Board of a site for a school building is appealable to the State Board of Education
March 22, 1950
Honorable M. D. Collins State Superintendent of Schools
OFFICIAL OPINION QUESTION:
"1. Under the law giving the members of the County Board of Education the legal right to consolidate schools, if and when said Board makes a consolidation and the decision of the Board is not satisfactory to all parties concerned, may those who are not satisfied appeal this matter to the State Board of Education? In other words, is this an appealable question?
"2. Do the members of the County Board of Education have the right to select the site on which to build school buildings and if the site is not satisfactory to all parties concerned, may this question be appealed to the State Board of Education? Is this a question which is appealable? ANSWER:
Section 32-910 of the 1933 Annotated Code of Georgia provides: "The county board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary; and When they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal to the State Board of Education, and said appeal shall be made through the county superintendent of schools in writing and shall distinctly set forth the question in dispute, the decision of the county hoard and testimony as agreed upon by the parties to the controversy, or if they fail to :Jgree, upon the testimony as reported by the county superintendent of schools." Section 32-414 of the 1933 Annotated Code of Georgia provides: "The State Board of Education shaH 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 superintendents 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." Section 32-915 of the 1933 Annotated Code of Georgia Provides: "The Board of Education of any county shall have the right if, in their opinion, the welfare of the schools of the county and the best interests of the pupils require, to consolidate two or more schools into one school, to be located by said board at a place convenient to the pupils attending the same, the schoolhouse to be located as near the center of the district or districts as practicable." Section 32-909 of the 1933 Annotated .Code of Georgia provides: "The county boards of education shall have the power to purchase, lease, or rent school sites; build, repair or rent schoolhouses, purchase maps, globes, and school furniture, and make all arrangements necessary to the efficient operation of the schools. The said boards are invested with the title, care and custody of all schoolhouses or other property with power to control the same

37
in such manner as they think will best serve the interests 0f the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board. They shall have the power to receive any gift, grant, donation, or devise made for the use of the c,ommon schools within their respective counties, and all conveyances of real estate which may be made to said board shall vest the property in said board of education and their successors in office. It shall also be the duty of said board of education to make arrangements for the instruction of the children of the white and colored races in separate schools. They shall, as far as practicable, provide the same facilities for both races in respect to attainments and abilities of teachers, but the children of the white and colored races shall not be taught together in any common or public school. In respect to the building of schoolhouses, the said board of education may provide for the same by a tax on all property located in the county and outside the territorial limits of any independent school district. The construction of all public school buildings must be approved by the superintendent and board of education and must be according to the plans furnished by the county school authorities and the State Board of Education."
The Supreme Court of Georgia in the case of Boney v. County Board of Education of Telfair County et al, 203 Ga. 152, held as follows:
"The Code, 32-910, constitutes the county board of education a tribunal for hearing and determining local controversies in reference to the construction or administration of the school laws. It makes their decisions final unless an appeal to the State Board is taken. It requires that such appeal be in writing, that it set forth the question in dis:r;ute, the decision of the county board, and the 'testimony as agreed upon by the parties to the controversy, or if they fail to agree, upon the testimony as reported by the county superintendent of schools'. In thus requiring that the appeal contain the testimony heard by the county board, the law shows an intent that the State board be restricted at the hearing on appeal to the testimony previously considered by the county board. This would prohibit 'a de novo trial by the State board. This is further supported by the fact that the law has given the county board wide discretionary powers, and whether or not it has abused its discretion can be ascertained only by a consideration of the testimony which it heard and upon which its decision is based. 'The conclusion is in harmony with the further policy of the law to give to the local ,authorities as much power and responsibility as possible for the conduct of the public schools. It accords with the undenill!ble fact that the members of the county board, being familiar with the local conditions and circumstances, are in a better position to adjust local matters to eiisting conditions than the State board, which is far removed.
"The provisions of the law which specify the essentials of an appeal show that only the decisions of the county board made on disputed issues are appealable. If there has been no issue heard and decided by the county board, there can be no parties and no testimony which the law authori:ting an appeal contemplates. We think that this court in Meadows v. Board of Education, 136 Ga. 153 (71 S.E. 146), clearly indicated that, as a condition precedent to an appeal, there must be an issue made and tried by the county board. It is there said, at page 156: 'If the county board has improperly located the school site in the Brownsville District, the ,complaining parties are afforded a right to be heard before the board sitting as a court; and if that board upon the testimony submitted decides against the complainants, they are given the right of appeal.' If any parties are dissatisfied with the action of the county board,

38
they must file a complaint and submit such evidence as they desire to that board which is empowered by law to sit as a tribunal for the purpose of deciding such issues. If no objection or complaint is filed with the county board, its decision is final and presumably is satisfactory to all parties concerned. The county board rather than the State Board is empowered to hear testimony on all such complaints, and it exercises its discretion before the State Board is authorized to review the decision of the county board on an appeal." (Underscoring supplied.)
The Supreme Court of Georgia in the case of Board of Education of DeKalb County et al. v. Huddleston et al., 174 Ga. 761 held as follows:
"The right of appeal given in section 13 of the above act exists only when the county >board of education has heard and decided some matter of local controversy in reference to the construction or administration of the school law."
The Supreme Court of Georgia in the case of Burton et al. v. Kearse, County School Superintendent, et al., 204 Ga. 765, held as follows:
"The Constitution of 1945 (Code, Ann. Supp., 2-6801) makes the county a single school district and vests in the county board of education complete control and management of the schools. The legislature, by an act of 1919 (p. 326), as amended by an act of 1946 (pp. 206, 207; Code, Ann. Supp. 32-915) vests in the county board of education authority to consolidate schools in the county, 'if in their opinion' the welfare of the schools and the best interest of the pupils require it. From the decisions of the county board the law authorizes an appeal to the State board, and declares that the decisions of that board on appeal shall be final and conclusive. . . ."
Answering your questions, it is my opinion that where a proper petition is filed with the county board .of education requesting a hearing objecting to the county hoard of education consolidating schools within a county or the selection of a particular site on which to build school buildings, and testimony is submitted and the county board hears the complaint and all competent evidence offered in support thereof, that any decision of such county board of education acting as a special tribunal under the provisions of Section 32-910 would be appealable to the State Board of Education pursuant to Section 32-414 of the Code.

EDUCATION-County Board of Education The grand jury is the appointing authority in case of a vacancy on a County Board of Education.

Honorable M. D. Collins State Superintendent of Schools

November 7, 1950

OFFICIAL OPINION

QUESTION: Who is the appointing authority in case of a vacancy on a county board
of education?
LAW: Paragraph I, Section V, Article VIII of the 1945 Constitution of Georgia
provides:

"In case of a vacancy on said Board by death, resignation of a member, or from any other cause other than the expiration of such member's term of office, the Board shall by secret ballot elect his successor, who shall hold of-

39
fice until the next grand jury convenes at which time said grand jury shall appoint the successor member of the Board for the unexpired term. " OPINION:
The Georgia Constitution which was adopted in 1945 provides that in case of a vacancy on a county board of education, "the Board shall by secret ballot elect his successor, who shall hold office until the next grand jury convenes at which time said grand jury shall appoint the successor member of the Board for the unexpired term."
Therefore, since the provisions of the Constitution supersede that portion of .Section 32-905 giving judges of superior courts power to fill vacancies on a county board of education, I construe the Constitution to mean that the grand jury is the appointing power of the members of the county board of education 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 also construe it to mean that if a vacancy occurs at a time when 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 the above provision of the Constitution provides that the members of the county board of education by secret ballot shall elect a person to hold until the grand jury convenes, so that the grand jury can make the appointment for the unexpired term as contemplated by the Constitution.
EDUCATION-County Boards of Education 1. County Boards of Education may lease school buildings on a year-to-year basis with a renewal clause. 2. County Boards of Education may confer with owners of property regarding the type and design of school buildings that they would be agreeable to rentor lease. 3. County Boards may accept school buildings as outright gifts from the owner.
June 19, 1950
Honorable M.. D. Collins, State Superintendent of Schools, State Office Building, Atlanta 3, Georgia.
OFFICIAL OPINION FACTS:
"I am enclosing to you a letter dated June 9 which I have just received from Honorable Pat E. Helton, Union County Superintendent of Schools. He would like to know if, in your opinion, he and his county board of education can erect school buildings along the line which he suggests in his communication of June 9.
"I shall appreciate your very earliest possible attention to this matter ... Mr. Helton, County Superintendent of .Schools of Union County, in his letter states: "The question is this: I need to construct two or more rural consolidated elementary schools. I do not have the money to do this building with, however, I have contacted more than one individual who has told me that they would furnish the Board of Education with the needed money to have these buildings constructed. The Board of Education would in turn lease these buildings from them for a certain amount each year until the cost of the buildings is paid in full then the title of the property would be vested in the Board of Education.

40
QUESTION: "I want to know if I can legally do this. If this can be nandled in this
manner, I believe that it would help the small rural counties solve their immediate needs for more class rooms." ANSWER:
It is my opinion that school buildings could not be built under the exact procedure as outlined in Mr. Helton's letter. However, I am pleased to point out to you a method by which a county board of education could obtain school buildings when they are unable or do not desire to issue bonds or :have funds legally usable to construct such buildings.
Section 32-909 of the 1933 Annotated Code of Georgia provides:
"The county boards of education shall have the power to purchase, lease, or rent school sites; build, repair or rent schoolhouses, purchase maps, globes, and school furniture, and make all arrangements necessary to the efficient operation of the schools. The said boards 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 it will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; suoh conveyance to be executed by the president or secretary of the board, according to the order of the board. They shall have the power to receive any gift, grant, donation, or devise made for the use of the common schools within their respective counties, and all conveyances of real estate which may be made to said board shall vest the property in said board of education and their successors in office. It shall also be the duty of said board of education to make arrangements for the instruction of the children of the white and colored races in separate schools. They shall, as far as practicable, provide the same facilities for both races in respect t0 attainments and abilities of teachers, but the children of the white al'ld colored races shall not be taught together in any common or public school. In respect to the building of schoolhouses, the said board of education may provide for the same by a tax on all property located in the county and outside the territorial limits of any independent school district. The construction of all public school buildings must be approved by the superintendent and board of education and must be according to the plans furnished by the county school authorities and the State Board of Education."
Under the provisions of the above section of the Code, it is clear that a county board of education has the authority to lease or rent school sites or school houses. Authority is also vested by said Code Section in the county board of education to receive any gift, grant, donation, or devise made for the use of the common schools within their respective counties.
I know of no law which would prohibit a county board of education from leasing a building or buildings for common school purposes of the county when in their discretion jt is deemed necessary to the efficient operation of the schools of the county and at a later date receiving the property as a gift to the county school system from the owners, provided such lease is on a yearly basis with a renewal clause.
It is the common practice for a prospective tenant to confer with the owner of a .piece of property or building as to the design and construction of a building that he would be agreeable to rent or lease, and I know of no prohibition against the county board of education doing likewise.
Therefore, it is my opinion that under the clear provisions of Section 32-909 of the 1933 Annotated Code of Georgia that a county board of education is authorized to lease on a year-to-year basis with renewal clause a building or

41
buildings for common school purposes of the county, when in their discretion it is deemed to the best interest of the common schools of the county. It is my further opinion that a county board of education would be authorized to specify the type and design of construction of a building that they would be agreeable to rent or lease.
It is my further opinion that a county board of education has the clear authority to accept any building or property that it may now or in the future have under lease, as a gift to the county school system from the owner.
Under this procedure I believe that a great number of our county boards of education will find public spirited citizens who are genuinely interested in improving the school system of our State, who will gladly build modern school buildings and rent them to the county boards of education for common school purposes and at a later date make an outright gift of these buildings to the county school systems.
EDUCATION-County Board of Education (Unofficial) 1. 'The County Board of Education may not divide the County up into school districts, but it does have the power to divide the county into attendance areas and require school children living in the area to attend schools within the areas. 2. All official meetings of County Boards of Education shall be open to the public.
May 4, 1950
Honorable D. W. Bennett I am pleased to acknowledge receipt of your letter of April 26, 1950 in which
you ask if a County Board of Education can set up districts in a county and compel pupils residing in them to attend that school, and if the Board can have closed meetings and not permit the public to attend.
Section 32-909 of the 1953 Georgia Code, Annotated, stated that the County Boards of Education are invested with the title, care and custody of all school houses, with the power to control the same in such manner as they think will best serve the interests of the common schools. In the case of Downer vs. Stevens, 194 Ga. 598, Presiding Justice Atkinson speaking for the unanimous court said:
"'This court has repeatedly held that the .Jaw vests full power and authority for the operation of schools in the county boards of education."
Headnote 1 in the case of Boney vs. County Board of Education of Telfair CO<Unty, 203 Ga. 152, (Decided in 1947), reads as follows:
"The County Board of Education of Telfair County is empowered by law to fix the area to be served by each public school and to locate the site of the schoolhouse therein as near the center of the area served as practicable, and such action by the county board is final unless objections are filed, in which event a hearing by the board must be held and a decision rendered on the objections made. Only such latter decisions by the county board is reviewable on appeal to the State board."
It is true that under the provisions of Article VIII, Section V, Paragraph I of the Constitution of the State of Georgia of 1945 Section 32-1101 of the 1933 Georgia Code, Annotated, each county, exclusive of independent school systems, composes one school district. Hence, a County Board of Education may not divide the county into school districts, but by the authority of the Code Section and cases cited above it appears that a County Board does have the

42
power to divide the county into attendance areas and require that persons of school age living in a certain area attend the school in that area.
In answer to your second question, I refer you to Article VIII, Section VIII, Paragraph I of the Constitution of the State of Georgia of 1945, \vhich provides that,
"All official meetings of County Boards of Education shall be open to the public."
Section 32-907 of the Code states that all official proceedings and records of the County Boards of Education shall be a public record and open to the inspection of any person.
EDUCATION---"County Board of Education (Unofficial) 1. The County Boards of Education are prohibited from spending or appropriating, or contracting to spend, or creating an indebterlness for more money than their total anticipated revenue for that year. 2(a). The County Boards of Education do not have the power to recommend a school tax levy of more than 15 mills constitutional limitation. 2(b). The tax levying officials do not have the power to make a levy over and above that recommended by the Board of Education. 3. 'The State Department of Education has the power to require that the County Boards recommend a tax levy before they may participate in the equalization fund provided for by law.
July 25, 1950
Honorable Clifford McBride I have your recent letters in which you request my opinion on certain ques-
tions which confront you as a member of the Board of Education of Montgomery County. You ask to have my rep1y in time for the Board meeting the First Tuesday in August.
As you know, any official answer to the questions which you propound is for the County Attorney of Montgomery County. However, I am glad to cite to you several provisions of law and decisions which may be of help to you ana other officials of your County in deciding these questions.
Question 1. Does the County Board of Education have the authority to spend more money for any purpose during the current year than their anticipated revenue for that current year?
I feel that a County Board has no such authority. A county or a county agency, as is the County Board of Education, cannot spend or appropriate moneys beyond the specific purposes enumerated by the Constitution and the statutes pursuant to the Constitution. Constitutional limitations on county and municipal debts are found in Article VII, Section VII of the Constitution of the State of Georgia of 1945. See Paragraph I (Code Section 2-6001); Paragraph III (Code Section 2-6003); Paragraph IV (Code Section 2-6004). The last citation concerns temporary loans and limiting them to 75% of the total gross income collected in the last preceding year. .Also see Code Section 32-921, which specifically limits the power of county boards of education to borrow money to the amount which the county will receive from the State and from taxes during the year in which such loan is made. This Act was passed prior to the 1945 Constitution. Also see Code Section 32-928, which provides that it will be unlawful for any board of education to make any contract involving the expenditure of funds in excess of the total appropriation for the current fiscal year, provided county boards of education shall have authority to contract for the transportation of pupils for a period not to exceed four years. Any indebt-

43
edness created, contract made or order or draft issued in violation thereof shall be void.
Thus it would seem the county boards of education are prohibited from spending or appropriating or contracting to spend, or creating an indebtedness for more money than their total appropriation or anticipated revenue for that year.
Question 2. (a). Does a county board of education have the power to recommend to the tax levying officials of a county a levy of more than the constitutional limit of 15 mills for school purposes, where no bonds have been voted?
In my opinion, county boards of education have no such power. This question was substantially settled by the Supreme Court of Georgia in the case of The County Board of Education of Wilcox County v. The Board of Commissioners of Roads and Revenues of Wilcox County, and vice versa, 201 Ga. 815; and the case of The Board of Commissioners of Roads and Revenues of Twiggs County et al., v. Bond, et al., 203 Ga. 588. When bonds voted, see the case of Nelms v. Stephens County School District, 201 Ga. 274.
Question 2. (b). Do the tax levying officials of the county have the power to make a levy over and above that recommended by the Board of Education for the construction of school buildings or any other purposes ?
In my opinion, the tax levying officials have no such power. The Supreme Court of Georgia held in the case of the County Board of Education of Wilcox County, supra, that under the provisions of Article VIII, Section XII, Paragraph I of the Constitution of 1945, it is mandatory upon county hoards of commissioners of roads and revenues, or other fiscal authorities levying taxes for the county, to follow the recommendation of county boards of education as to the tax levy to be made for the support of education, where such recommendation is within the limitation defined by the Constitution.
Question 3. Does the State Department of Education have the legal power to require the county boards of education to recommend a tax levy of any specific millage of over 5 mills in order for the county board to participate in the equalization funds provided by law?
The State Department of Education feels that it has this power and that it is derived from Georgia Code Section 32-948, which provides as fol1ows:
"32-948. Extra appropriation to common school fund. Equalization fund provided.-In addition to the regular appropriation for the support of the public schools, the General Assembly shall provide an equalization fund, which shall be disbursed by the State Board of Education for the purpose of more nearly equalizing the educational opportunities of the children of the several counties. The State Board of Education, in its distribution of said equalization fund to county boards of education, shall take into consideration the possible returns from taxable values for school purposes, the extent to which local tax aid has been utilized, the educational needs, and the local inequalities existing in the several counties. No county or independent system shall share ln. the equalization fund for any year unless it levies at least five mills for a local tax for its public schools for that year. (Acts 1926, Extra. Sess., pp. 39, 40.)"
The foregoing Act was passed in 1926 when the tax for school purposes was 5 mills. However, by the Constitution of 1945, Article VIII, Section XII, Paragraph I (Code Section 2-7501), the tax rate for school purposes was made not less than 5 mills nor greater than 15 mills, and therefore, the State Board of Education in distributing its equalization funds may take into consideration the extent to which the local tax aid has been utilized, and in accordance with this view, have, I understand, made a ruling last year and will probably make one again this year that for a county to share in the equalization funds it must levy its maximuM tax of 15 mills allowed by the Constitution.

44
Since my official authority is restricted by law to legal matters relating to the State Government, my views in thi~ letter must be accepted as unofficial and personal. I trust, however, that you will find the foregoing citations helpful to your County Board and your other county officials in determining the answers to the questions which you have propounded.
EDUCATION-County Board of Education (Unofficial) The ballots in school bond elections shall be furnished and the election managers appointed by the county board of education.
February 3, 1950
Honorable J. J. Godley Ordinary, Camden County
I am pleased to acknowledge receipt of your letter of January 31st, in which you state that the Board of Education has called a county-wide eledion on the issue of bonds, and ask, "Should the ballots be furnished, and the election managers appointed, by the Ordinary or by the Board of Education?"
Section 32-1403 of the 1933 Georgia Code .Annotated provides when any county board of education shall deem it to the best interests of education in the county to incur any bonded debt for building, equipping or purchasing sites for the building and equipping of schoolhouses, the election required shall be called and held in the manner prescdbed by Chapter 87-2. Section 87-201 reads as follows:
"When any county, municipality, or political division shall desire to incur any bonded debt, as prescribed in Paragraphs I and II, Section VII, Article VII of the Constitution (2-5501, 2-5502), the election required shall be called and held as follows, to wit: The officers charged with levying taxes, contracting debts, etc., for the county, municipality, or political division shall give notice for the space of 30 days next preceding the day of election in the newspaper in which the sheriff's advertisements for the county are published, notifying the qualified voters that on the day named an election will be held to determine the question whether bonds shall be issued by the county, municipality, or political division. In said notice he shall specify what amount of bonds are to be issued, for what purpose, what interest they are to bear, how much principal and interest is to be paid annually, and when they are to be fully paid off."
Section 87-202 reads: "'The election provided for in the preceding section shall be held at all the voting or election precincts within the limits of the county, municipality, or political division, and shall be held by the same persons, in the same manner, and under the same rules and regulations that elections for officers of said county, municipality, or political division are held, and the returns shall be made to the officers calling or ordering the election, who shall, in the presence of and together with the several managers (who bring up the returns), consolidate said returns and declare the result." In the case of Nelms v. Stephens County School District, et al,. 201 Ga. 274, the petitioner filed an intervention objecting to the validation of school bonds voted <by a majority .of the qualified voters in an election called and managed by the Stephens County Board of Education, on the ground that said Board was not the proper authority under the provisions of Chapter 87-2 of the Code to call, hold, manage, consolidate, and declare the result of such election. In Headnote 5 (a) of a full bench decision, the Georgia Supreme Court said: "Members of the county board of education are required to make recommendations to the proper fiscal authorities of the county for a tax for the sup-

45
port and maintenance of the school system in the county school district; also to make recommendations for a tax to provide a sinking fund for retirement of such bonded indebtedness as might exist in the separate local school districts absorbed into the county school district vnder the provisions of Code 22-1401; and, in view of the clear authority of the county board of education to contract debts for the operation of the school district, Code, 32-921, 32-922, 32-928, it would seem manifest that the county board of education is the proper authority contemplated under the provisions of Chapter 87-2 of the Code to call, manage, consolidate, and declare the result of an election held for the purpose of incurring bonded indebtedness for building and equipping schoolhouses. Especially would this seem to be true in view of the provision of Code 22-1401, that 'The -Gounty Board of Education of each county shall succeed to and be vested with all of the rights, powers, and duties formerly vested in the local or consolidated school district trustees with respect to building and equipping schoolhouses in the county;' and in view of the unquestioned authority of local school trustees, prior to the enactment of Code 22-1401, to call, hold, manage, consolidate, and declare the result of the elections to incur bonded indebtedness within the local school district for the purpose of building or equipping schoolhouses. Code, 32-1401."
Hence, it is my opinion that the ballots should be furnished and the election managers appointed by the county hoard of education for the i.Jond election to be held in Camden County on February 15th.

EDUCATION-County School Superintendent 1. The County School Superintendent cannot have a financial interest in a company selling school busses. 2. It is a matter for the County Board to determine how long a member financially interested in a company selling school busses shall remain as County School Superintendent.

Honorable J. I. Allman Assistant State School Superintendent

March 17, 1950

State Department of Education

QUESTIONS:

OFFICIAL OPINION

"1. Is it legal for a county school superintendent who holds a financial interest in a company engaged in selling school busses to retain his post as county school superintendent so long as he does not sell to the hoard of education of the county which he officially serves as superintendent?

"2. In case the answer to question one is negative, what length of time should be allowed to wind up his official affairs after he affiliates with the bus sales company as indicated in question 1?

"3. Assuming that the answer to question 1 is negative and the superintendent refuses to resign his office but insists on holding office while engaged as indicated in question 1, what legal action could be taken to remove him from

office?

ANSWER: The answer to your Question 1 is found in the Acts of 1947, pages 1461-1463,
Section 32-428 of the 1933 Annotated -Gode of Georgia, Pocket Supplement, which reads as follows:
"No member of the State Department of Education or county school super-

46
intendent or member of the county board of education shall be financially interested in procuring and operating means or facilities for school bus transportation or in selling school buses, school bus equfp,ment, or school bus supplies to county boards of education." (Underscoring supplied.)
The above statutory provision specifically provides that no county school superintendent shall be financially interested in procuring and operating means or facilities for school bus transportation or in selling school buses, school bus equipment, or school bus supplies to county 'boards of education.
It is clear that the above cited statutory provision applies to all county boards of education without any exception. Therefore your Question 1 is answered in the negative.
The answer to your Question 2 is one which addresses itself to the county board of education since such board is charged with the management and control of the public schools of a county and it is a tribunal for hearing and adjudicating controversies arising in the county relating to construing and administering school laws.
Section 32-910 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides as follows:
"The county board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary; and when they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal to the State Board of Education, and said appeal shall be made through the county superintendent of schools in writing and shall distinctly set forth the question in dispute, the decision of the county <board and testimony as agreed upon by the parties to the controversy, or if they fail to agree, upon the testimony as reported by the county superintendent of schools: Provided, that this section shall not apply to any public school system established prior to the adoption of the Constitution of 1877."
In answer to your third Question, your attention is called to Section 32-1008 of the 1933 Annotated Code, Pocket Supplement, which provides as follows:
"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 to appeal from the action of the county board to the State Board of Education, and provided, further, that this section shall not apply to any public school system established prior to the adoption of the Constitution of 1877."
It appears that should a county school superintendent violate the provisions of Section 32-428 by engaging in any of the prohi,bited acts therein specified, the county board of education could proceed to remove such offending county school superintendent from office under the provisions of Section 32-1008, above cited.

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EDUCATION-Immunization of School Children County boards of education, together with county boards of health, may require immunization for infectious and contagious diseases as a prerequisite for attendance at the county schools and those failing to comply with such regulations will be subject to the criminal liabilities provided by law and also be liable for violation of the compulsory school attendance law.
October 18, 1950
Honorable M. D. Collins State Superintendent of Schools
OFFICIAL OPINION F.&CTS:
In November 1949, at the request of the County Health Department, a county board of education passed a resolution requiring immunization for smallpox, diptheria and typhoid fever as a prerequisite for attendance at the schools of that county. This resolution was to become effective at the beginning of the 1950-1951 term.
In September 1950 a group of patrons of one of the small districts in the county concerned came before the Board of Education and asked to be permitted to send their children to school without the immunizations because of their religious beliefs. There were only three members of the school board present at the meeting and they agreed that the children would be allowed to attend school until the next meeting when all members of the Board would be present, provided the patrons would furnish a statement that they were opposed to the immunizations because of religious beliefs. The patrons concerned refused to sign such a statement and appeared before the Board at its October meeting with their Minister and stated that they could not sign the statement because their entire church group did not oppose immunization.
The county board of education decided, therefore, to abide by their original resolution of November 1949 requiring the immunizations and, as a result, there are about fifteen children who are now not in school. PROBLEM:
The Board o:f Education requests a ruling from the Attorney General as to its authority in such a case and asks generally for instructions or suggestions and steps that might be taken to get the children in school. ANSWER:
The authority of county boards of education to require vaccination of the pupils in their schools as a prerequisite to admission seems clear.
Georgia Code Ann. Supp. Section 32-911 is as follows: "32-911. Vaccination of pupils of public schools.-The boards of education of each county may make such regulations as in their judgment shall seem requisite to insure the vaccination of the pupils in their respective schools and may require all scholars or pupils to be vaccinated as a prerequisite to admission to their respective schools. (Acts 1880-1, p. 97; 1919, p. 325; 1946, pp. 206, 207.)" The question now arises as to whether the term "vaccination" includes immunizations for diptheria and typhoid fever as well as smallpox. The -Georgia law on this point is not entirely clear. In an unofficial opinion dated April 27, 1948, Opinions of the Attorney General 1948-1949, p. 98, the conclusion was reached that Code Section 32-911, supra, was sufficient to authorize the county board of education to require all students to take typhoid shots and that the word "vaccination'' was synonymous with inoculation. Citing 43 Words and Phrases, p. 640. On re-examination of the above stated reference in Words and Phrases, there is a strong indication that, generally, the term "vaccination" is

48
used only in regard to smallpox and means inoculation with the virus of cowpox for the purpose of communicating that disease as a prophylactic against smallpox. Blacks' Law Dictionary defines vaccination as an inoculation with vaccine of the virus of cowpox as a preventive against smallpox, frequently made compulsory by statute. Webster's Dictionary, on the other hand, indicates that the word vaccination is now used loosely to mean any inoculation with any vaccine as a preventive measure.
Georgia Code Ann. Section 88-9911, which is as follows: "88-9911. Spreading smallpox.-Any physician, surgeon, or other person, wilfully endeavoring to spread the smallpox, without inoculation, or by inoculation with matter of smallpox, or using any ino,culation other than that called vaccination, unless by special commission or authority from the court of ordinary of the county where the smallpox shall make its appearance, shall be guilty of a misdemeanor. (Cobb, p. 816.)" indicates that in that instance the Legislature thought of vacdnation as pertaining only to smallpox. On the other hand, Georgia Code Ann. Section 88-417, which is as follows: "88-417. Same; vaccination; compulsory measures.-All county and municipal authorities shall be authorized and empowered to enact rules, ordinances, or regulations to authorize the proper officials of said municipalities or counties to require, under penalty, all persons at the time located in said municipalities or counties to submit to vaccination, in the event the health ,officers or the proper authorities think it advisable, for the purpose of preventing the spread of smallpox or any other contagious or infectious disease. (Acts 1897, p. 101.)" indicates that in that instance the Legislature thought of vaccination as a means of preventing not only smallpox but any other contagious or infectious disease. It is apparent, therefore, by reason of Code Section 32-911, supra, that county boards of education would have authority to require all pupils to be vaccinated against smallpox as a prerequisite to admission to their respective schools, and although it is not clear that this same section gives the county boards the authority to require that all pupils be also immunized for diptheria and typhoid fever as a prerequisite for attendance at a county school, I am inclined to believe that if this question were preSE!nted to the courts that the courts would hold that county boards of education had the authority to make such a reasonable rule and regulation. Generally speaking, control and management of public school affairs are vested in the county boards of education. There is, I feel, clear authority for the county boards of health to adopt such rules and regulations as they may deem necessary for the protection of the health of their respective counties and for preventing the introduction, generation and spread of infectious and contagious diseases therein. See Georgia Code Ann. Section 88-203, which is as follows: "88-203. Rules and Regulations, authority ,of county boards to make.-The county boards of health of the several counties shall have full power and authority to adopt, enact, establish, and maintain all such rules and regulations, not inconsistent with the laws and Constitution of this State and of the United Sates, as they may deem necessary and proper for protecting the health of their respective counties, and for preventing the introduction, generation, and spread of infectious and contagious diseases therein: Provided, that such rules and regulations shall not apply to any incorporated city or town. (Acts 1901, p. 61; 1914, pp. 124, 125.)" This provision is also ,codified in the Georgia Code section dealing with education as Code Section 32-1801. It would seem, therefore, that if the county board of health in the county concerned could promulgate, as provided by law, a regulation requiring the immunization of all school children for diptheria and typhoid fever as a pre-

49
requisite for attending schools in the county, that this action by the county health department, together with the county board of education would serve as a sufficient authority to require immunization for diptheria and typhoid fever, and that failure to comply with such a rule and regulation would subject the guilty person to criminal prosecution under Code Section 88-902.
Parents who refuse to have their children vaccinated for smallpox, by reason of which the child is prevented from attending school, would seem to me to place themselves in jeopardy as regards the public school attendance law as codified in Chapter 32-21 of the Georgia Code Ann. Supp., and in my opinion the fact that they had refused to allow the child to be vaccinated because of religious beliefs, and hence their child was refused admission to school, would not serve as an excuse for violation of the compulsory school attendance law. These matters, however, seem to me to be primarily matters for your county attorney or the attorney representing th0 ,county board of education involved, and the solicitors and courts of the State. Generally speaking, the courts of this country and of this State have upheld the right to enact and enforce reasonable laws or regulations to preserve and protect the public health.
In conclusion, it is my opinion that the various county boards of education in conjunction with the county health departments can properly :require immunization f.or smallpox, diptheria and typhoid fever as a prerequisite :for attendance at school in the county and that the failure to comply with such a regulation would subject the person failing to the criminal liabilities provided by law, and that while the authority of the county board of education is limited to refusing admission to a pupil not properly immunized, the county board of education could still take such steps as provided by law in regard to a person who refuses to comply with the compulsory school attendance law. The fact that a person was refused admission to the public schools because he was not immunized on the grounds that his religious beliefs prevented immunization would not in my opinion serve as a defense for violation of the compulsory school attendance law.
EDUCATION-Merger of City & County School System (Unofficial) If the City and County School Systems merged under the pvovisions of Chapter 32-12 of the Georgia Code, an independent school system, as contemplated by the Constitution, does not exist.
January 20, 1950 Honorable James W. Brooks Attorney at Law
I have your letter of January 14, 1950, in which you state that under the charter of your city, enacted in 1910, there was established an independent school system with the mayor and councilmen acting as the Board of Education, and that your city operated under this system until about ten years ago when the city school system was merged with the county system. You state further that the charter of the city has never 'been changed or amended in regard to its having an independent school, and now your question is: Can the city still be considered as having an existing independent school system, or can it reactivate its system in view of Section VII of the Constitution of 1945.
You did not set out the procedure by which the city merged its system with the county system about ten years ago, but I imagine this merger was accomplished under Chapter 32-12 of the Georgia Code which provides for a municipality or independent school district annulling or repealing their special school law and becoming a part of the county school system. If that be true, then it is my opinion that Paragraph I of Section VII of Article VIII of the

50
Constitution would prove a bar to your city's attempting to reactivate its independent school system under its 1910 charter. In other words, it is my opinion that if your discontinuance of your independent sch<Jol system wns accomplished under the provisions of Chapter 32-11 prior to 1945, then you would not have had an existing independent school system as contemplated by the 1945 Constitution and thus you would not be able to reactivate, maintain or preserve a city system.
While it is not entirely in point, I feel that the decision in the case of lVIiller, et al. v. The City of Camilla, et al., 188 Ga. 674, tends to support this conclusion.

EDUCATION-School Bus Drivers 1. A driver of a privately owned bus under a competitive bid contract is entitled to the additional four cents per mile compensation. 2. A statement of willingness to fill the contract does not act as a waiver of the additional compensation. 3. Where a county board of education uses the funds received for paying the additional compensation for other purposes, the bus driver has recourse against the county board by means .of a writ of mandamus. 4. Where the contract was bidded and entered into at the time the additional compensation was in effect, then the driver is entitled to both the contract price and the additional compensation.

Dr. M. D. Collins State Superintendent of Schools

April 18, 1950

OFFICIAL OPINION

FA>GTS: "On account of the wide public interest in the matter, especially as it in-
volves practically all of the school bus drivers of this state and the administra-

tion of the state funds appropriated under the act of 1949 (Georgia Laws, 1949, page 1508), I would like to have your official opinion upon the following questions: QUESTIONS:
"1. Under the aforesaid appropriation act, is the driver of a privately owned bus who is under contract with the county board of education of a given county, which contract was let to said driver upon the basis of a competitive bid, entitled to the additional four cents per mile compensation as provided for in this act?
''2. If such a driver at the beginning of the school year and after the eontract for the driving of the bus was entered into between the driver and the county board of education should sign the following instrument:
'I bid my bus route on competitive bid with the -------- .county board of education and I am willing to fill my contract as given to me by the -------county board of education,' would this constitute a valid waiver on the part of the school bus driver of his right to receive or be paid the additional four cents per mile compensation?
"3. In the event the county board of education has used the funds received under the appropriation act of 1949 for the payment of other transportation expenses than those contemplated under the act (to wit, additional compensation to school bus driver), what would be the recourse of the school bus driver and upon whom would the liability fall for the disbursement of these funds?
"4. In a situation where the appropriation act of 1949 was effective at

51
the time that bids for school bus transportation were received and contracts entered into, would the successful bidder be bound to furnish the transportation at the bid and contract prices or would he he entitied to four cents per mile in addition to the contract price?" ANSWER:
The Supreme Court of Georgia in the case of Hunt et al. v. Glenn, decided March 14, 1950, in construing the provisions of the Appropriations Act of 1949 (Georgia Laws, 1949, page 1509) held as follows:
"The General Assembly made it clear that its purpose was to give to all bus drivers, as additional compensation, the sum of 4c per mile, without regard to whether the buses were publicly or privately owned, but that the State Board of Education should fix minimum salaries of drivers, and that the direction given in this appropriation act should remain in force and effect until the General Assembly authorized the State Board of Education 'to establish other rules and regulations governing the operation of school buses.' The State Board of Education, as an administrative agency of the State in administering funds appropriated for the common schools, may make rules and regulations which are in harmony with the purposes of the law, but is without authority to make any rule or regulation which alters or limits the statute being administered.
"The trial judge did not err in ruling that the State Board of Education was without authority to make the rule which limited the county board of education in paying compensation to school 'bus drivers, in addition to their basic salary, to the sum of 2c per mile for mileage traveled where the bus was publicly owned.''
In view of the above decision your Question 1 is answered in the affirmative.
In answer to your Question 2, it is my opinion that the quoted language is not a waiver on the part of a school bus driver of his right to receive or be paid the additional four cents per mile compensation provided in the ,Appropriations Act of 1949.
In answer to your Question 3 and assuming for the purpose of this opinion that the total sum of four cents per mile for the total route miles traveled each month by the school busses, both private and contract, has been allocated and distributed by the State Department of Education to the county department of education, the recourse of the school bus driver would be against the county board of education and the writ of mandamus would be an appropriate remedy for the bus driver to cause to be paid to him the sums authorized by the Appropriations Act of 1949.
In answer to your Question 4, it is my opinion that the bus driver would be entitled to four cents per mile in addition to the contract price.
EDUCATION-Tax Funds Tax funds may be properly expended to insure automobiles not owned by School Boards, but used, 'bY agreement with the owner, for the purpose of teaching safe driving as a part of the school's curriculum.
October 11, 1950
Honorable B. E. Thrasher, Jr. State Auditor
OFFICIAL OPINION QUESTION:
Whether or not tax funds can be expended to insure an automobile not

52
owned by a School Board, but used, with the owner's consent, for the purpose of teaching safe driving as part of the school's curriculum. ANSWER:
In the affirmative. REASON:
It is my opinion that basically the relationship between the automobile dealer, owner of the car, and the School, user of the car, is that of lessor-leasee. Recently I have had the occasion to render an opinion regarding the legality of the leasing of plant facilities by the School Boards, and I concluded then that such a lease arrangement was legally sound.
In my opinion if the dealer requires the School to pay for the insurance coverage as a condition to the use of the vehicle, it amounts to a rental consideration. Of course, the vehicle should be used only f.or the purpose of teaching safe driving and, therefore, the insurance premium would be comparable to other expendible instruction costs such as laboratory materials, etc.
Further, as a matter of sound administrative policy, I am of the opinion that the interest of the Board of Education, as well as the automobile dealer, can best be protected by insurance coverage against liability that might be incurred during an instruction period.
EDUCATION-Teachers Retirement System A teacher in a local school system operating its own pension plan who retires because of a disability after the enactment of the State Teachers Retirement Law but before the local system voted to become a part of the State System, would not be eligible for disability retirement benefits under the Teachers Retirement System of Georgia.
December 20, 1950 Honorable J. L. Yaden Executive Secretary-Treasurer Teachers Retirement System of Georgia
OFFICIAL OPINION FACT'S:
A teacher retired from the Athens Sc'hool System because of disability at the close of the school year 1943-1944, her disability having occurred after the enactment of the Teachers Retirement law in July 1943. She was a member, however, of the Athens local pension system at the time of her disability and the Athens system did not vote to become a part of the State Retirement System until March 1945. The teacher in question has not taught since May 1944 and at the time of her disability retirement she had 25 years in the public schools of Georgia, 21 of them being in the Athens city school. QUESTION:
Is the teacher in question eligible for disability retirement benefits under the Teachers Retirement System of Georgia ? ANSWER:
While an examination of the Teachers Retirement law shows that the question raised is a dose one, it is my considered opinion that the teacher concerned is not eligible for disability retirement benefits under the Teacher Retirement System laws of Georgia but will have to look to the Athens local pension system for her benefits.
Under Code Section 32-2903, dealing with membership in the Teachers Retirement System of Georgia, the teacher in question was not a member of the State System because she was in the service of an employer operating a local

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retirement system. (See paragraph 3 of Section 3 of the Teachers Retirement Act). As she was retired because of disability before her local retirement system elected in 1945 to become a member of the State Retirem\?nt System, her rights and pension accrued under her local retirement system and she was never a member nor did she ever have any rights under the State System.
Unde:;:o Code Section 32-2922 (which is Section 9, paragraph 1 of the Teacher's Retirement Act), there is indication that if the teacher in question had retired under the provisions of her local retirement system and if at the time of her retirement she would have been eligible for service retirement under the provisions of the State System had she been a member, the Board of Trustees would have had to pay from the State System to the managing board of the local retirement fund a pension as defined in the Act, but since her retirement was a disability retirement and not a service retirement, this latter provision of the Act seems to be inoperative so far as the teacher in question is concerned.
Paragraph 5 of this same Section 9 (32-2922) indicates further that the local retirement fund, even upon its dissolution, shall become liable for and pay all pensions entered upon and in effect at the time the local retirement fund is dissolved.
For these reasons, therefore, it is my opinion that the teacher in question is not eligible for disability retirement under the Teachers Retirement System of Georgia.
EDUCATION-Teacher's Retirement System 1. The $3,000.00 salary limit is of no more effect either in calculating the retirement benefits of those who will retire after the com;nencement date of the 1950 amendments or in re-calculating the retirement benefits of those who have already retired whose benefits shall be recalculated upon the commencement date of the 1950 amendment. 2. By reason of the 1950 amendment, any member who had retired under a disability retirement and who had had thirty-five years of creditable service should have the benefit of a service retirement allowance as of the effective date of the 1950 amendment.
April 27, 1950
Honorable J. L. Yaden, Secretary-Treasurer Teachers' Retirement System
OFFICIAL OPINION QUESTIONS:
1. In reference to the enactment of House Bill No. 935 in the 1950 legislative session, will the $3,000.00 salary limit as specified under the original act prevail for calculating the value of prior service, or will the salary that was earned for the last five years of service prior to 1943 prevail?
2. May those who have retired on disability with thirty-five years of service and had not reached the age of sixty, be retired in service under House Bill 935, or would their status be that of disability retirants? ANSWER:
The original Act, by Subsection 8 of Code Section 32-2901, states that: "'Prior service' shall mean service rendered prior to July 1, 1943, for which credit is allowable as provided in Section 32-2904." Subsection 3 of Code Section 32-2904 provides that: "The prior service accumulations Of a member shall be equal to the amount of contributions he would have made had the retirement system been in opera tion, together with regular interest thereon to July 1, 1943, at the rate of

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regular interest in effect on that date, if he had made contributions during his prior service with respect to his earnable compensation as defined in Section 32-2901, subsection (13), including service in a school system in this State which operates or operated a local retirement fund. In determining the earnable compensation of any member for the years of his prior service, the Board may use, in lieu of the compensation received by the member during his prior service, the rates of compensation which, if they had progressed during such pdor service in accordance with the tables adopted by the Board as provided in Section 32-2916, would have resulted in the same average final compensation on July 1, 1943, as the records show the member received."
Subsection 13 of Code Section 32-2901, prior to the 1950 amendment, defined earnable compensation to mean the full rate of regular compensation, excluding any part of compensation in e~cess of $3,000.00 per annum, paya:ble to a member teacher for his full normal working time; in cases where compensation includes maintenance, the Board of Trustees (of the Retirement System) shall fix the value of that part of the compensation not paid in money.
This subsedion 13 as now amended by the 1950 Act provides that earnable compensation shall mean the full rate of regular compensation payable to a member teacher for his full normal working time and does not exclude any part of his compensation whatsoever.
The 1950 amendment of the Teachers' Retirement Act further amended paragraph (c) of subsection 2 of Code Section 32-2905 as follows:
"(c) If he has a prior service certificate in full force and effect an additional pension equal to the annuity which would have been provided at age of retirement, but not to exceed an annuity which would have been provided at age sixty-five by three times the amount of his prior service accumulations as heretofore defined, with regular interest thereon from time to time in effect from the date of establishment until the date of his retirement, but not to exceed the attainment age of sixty-five. In the case of those who have retired and who are receiving retirement benefits based upon prior service credits under the Act upon the commencement date for these amendments, the board shall revise the benefits such persons are thereafter entitled to receive by re-calculating as of the date ,of their retirement the additional pension provided by the Act as amended, so that so much of the pension based upon prior service accumulations as is thereafter paid to such beneficiaries shall be equal to the annuity which would have been provided at the age of their retirement (but not e~ceeding age sixty-five) ,by three times the amount of the prior service accumulations of such persons, with regular interest thereon to the date of their retirement as herein provided; but for the purpose of calculating such increased pension payments based on prior service credits to be thereafter paid to such persons, such persons shall be deemed to have already received such increased pension benefits as provided by the Act as amended from the date of their retirement to the commencement date for these amendments. B~nefits payable by reason of optional elections under the Act to persons other than retired members, but based upon the prior service credits of such members, who have retired upon the commencement date for these amendments, shall also be adjusted in accordance with the directions hereof."
Thus it would seem clear that upon the commencement date of the 1950 amendments, the earnable compensation shall mean the full rate of regular compensation payable to a member teacher for his full normal working time and the $3,000.00 salary limit as specified under the original Act will no longer prevail in calculating earnable compensation or average final compensation or the value of prior service. By the amendment to paragraph (c) of subsection 2 of Code Section 32-2905, quoted to you above, it is clear, in the case of

55
those who have already retired and who have been rece1vmg retirement benefits based upon prior service credits unde1 the Act as established prior to these 1950 amendments, that upon the commencement date for these 1950 amendments the Board shall revise the benefits such retired persons are entitled to receive by re-calculating as of the date of their retirement the additional pension provided by the 1950 amendment, but such retired persons shall be deemed to have already received such ii1creased pension benefits as provided for by the 1950 amendments from the date of their retirement to the commencement date of the 1950 amendments. In other words, the $3,000.00 salary limit is o.f no more effect either in calculating the retirement benefits of those who will retire after the commencement date of the 1950 amendments or in re-calculating the retirement benefits of those who have already retired whose benefits shall be tecalculated upon the commencement date of the 1950 amendment.
Subsection 4 of Code Section 32-2905, prior to the 1950 amendment, provided, in part, as follows:
"Upon disability retirement a member shall receive service retirement allowance if he has attained age 60, otherwise he shall receive a disability retirement allowance which shall consist of: ..."
The above quoted portion of subsection 4 as amended by the 1950 Act now provides that:
"Upon disability retirement a member shall receive a service retirement allowance if he has attained age 60 or has thirty-five years of c1:editable service, otherwise he shall receive a disability retirement allowance which shall consist of: ..."
Thus the effect of the amendment is clear in that while formerly upon disability retirement a member would receive a service retirement allowance only if he had attained age 60, that now by reason of the amendment, upon disability retirement a member shall receive a service retirement allowance if he has attained age 60 or if he has thirty-five years of creditable service, whether he has attained age 60 or not.
In answer to your second question you desire to know, therefore, if a member who h'ld not reached age 60 but who had thirty-five years of service and who bad retired on disability retirement prior to the enactment of the 1950 amendment, should be paid as of the effective date of the 1950 amendment a service retirement allowance by reason of the fact that he had thirty-five years of creditable service at retirement instead of the disability retirement allowance which he had been properly receiving in accordance with the laws in effect at the time of his disability retirement.
It is my opinion that by reason of the 1950 amendment any member who had retired under a disability retirement and who had had thirty-five years of creditable service should have the benefit of a service retirement allowance as of the effective date of the 1950 amendment. In other words, when the 1950 amendment becomes effective, the law and the only law applicable to a member who has entered upon disability retirement provides that if at the time of his retirement he had thirty-five years of creditable service he should receive a service retirement allowance. The effect of this is not, as your question seems to indicate, to change their status from that of disability retirants to service retirants. They still remain, under the terms of Subsection 4 of Code Section 32-2905, a member who has retired upon disability, but it merely provides that their retirement allowance, even though they have retired upvn a disability, shall be a service retirement allowance and not a disability retirement allowance by reason of the fact that at the time of their disability retirement they had thirty-five years of creditable service.

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EDUCATION-Teachers' Retirement System 1. After one year has elapsed from the date of issuance or modification of the prior service certificate of a member or beneficiary of the teachers' retirement system, such member or beneficiary has lost the right to request or otherwise compel the Board of Trustees of the Teachers' Retirement System to modify or correct his prior service certificate, and insofar as any right or privilege of his is concerned his prior service certificate is final and conclusive. 2. The Board of T'rustees of the Teachers' Retirement System have the power to correct, on their own initiative and in their own discretion any error in the records whereby a member or benefli!iary receives more or less than he would have been entitled to receive had the records been correct, and the Board may adjust as far as practicable, payments made a beneficiary so that the beneficiary shall receive the actuarial equivalent of that which he would have been entitled to receive had the records been correct.

Hon. J. L. Yaden, Executive Secretary-Treasurer Teachers' Retirement System of Georgia

August 4, 1950

OFFICIAL OPINION FkGTS:
A teacher was issued a certificate of membership and prior service from the office of the Teachers' Retirement System dated July 29, 1948, which certified that said teacher was a member of the Teachers' Retirement System of Georgia and that she was credited with service in the public schools or State educational institutions of Georgia for five years prior to July 1, 1943, the certificate stated on its face that the law provides that a member of the Teachers' Retirement System has one year from the date of said certificate to make corrections in the data listed therein and that should any error in the records result in any member receiving from the Retirement System more or less than he would have been entitled to receive had the records been corJ:ect, the Board of Trustees has the power to correct such error.
Prior to the issuance of said certificate the Teachers' Retirement System had mailed to said member Form 5 which is the verification of prior service and is mailed to each teacher who has filed an enrollment blank in the System. This Form 5 contained a tabulation of the said teacher's service prior to July 1, 1943, as shown by the Retirement System files which files were based on information furnished by said teacher. This F'orm 5 on its face requested the teacher to check the information and tabulation as to prior service set forth therein with h'lr personal record and if correct, to sign and return it to the System's office, and if not correct, to so advise. This form 5 for the teacher in question plainly showed and listed only five years creditable service prior to July 1, 1943, and that tabulation of information was certified by the teacher in question as being ,correct.
This verification Form 5 had been mailed to the teacher in question in a cover letter which specifically advised the teacher in question that it was important for her to check her enclosed verification sheet to see if all of her teaching services in the public schools or the University System of Georgia prior to July 1, 1943, was listed.
On May 25, 1950, almost two years after the certificate of membership and prior service had been issued to her, the teacher in question wrote the Teachers' Retirement System of Georgia and stated that she had just discovered that she did not have all of her teaching service prior to July 1, 1943, on file with the Teachers' Retirement System, and that in fact, she taught 28

57
years in the public schools of Georgia prior to July 1, 1943, while her certificate of prior service and her verification sheet only show five years of prior service.
Reference was particularly made to Paragraph 2 of Section 4 of the Teachers' Retirement Act, Georgia Code Supplement 32-2904, which is as follows:
"32-2904. Creditable service.- ... (2) 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 services as a teacher rendered by him prior to July 1, 't943, for which he claims credit. In the event any person who would otherwise have qualified under this subsection shall be on leave in the armed forces of the United States, any person shall have until six months after termination of his military service to qualify under the provisions hereof. Upon verification of such statement of service, the Board of Trustees shall issue a prior service certificate certifying to the member of the period of service prior to July 1, 1943 with which he is credited on the basis of his statement of service, and certifying the amount of his 'prior service accumulations' as defined in subsection (3) of this section. So long as membership continues a prior service certificate shall be final and conclusive for retirement purposes as to such service; provided, however, that a member may, within one year from the date of issuance or modification of such certificate, request the Board of Trustees to modify or correct his prior service certificate. When membership ceases, such prior service certificate shall become void." PROBLEM:
Based on the above information, does the teacher in question have the right and privilege under the Teachers' Retirement Law to file and be given credit for any services rendered prior to July 1, 1943 in addition to the prior service credit certified to her in a prior service certificate of the Teachers' Retirement System when over one year has elapsed from the issuance or modification of said prior service certificate? ANSWER:
The first question to be answered before the fo.oblem can be resolved is what is meant by the word "membership" as used in the last portion of Paragraph 2 of Section 4 of the Teachers' Retirement Act, Ga. Code Supp. 32-2904 (2), "So long as membership continues a prior service certificate shall be final and conclusive ... when membership ceases, such prior service certificate shall become void."
It is my opinion that the word "membership" as used above i:rlcludes and means both an active contributing member and a retired member receiving benefits, and that a retired member has membership as that word is used in Code Section 32-2904 (2) supra.
It is true that Ga. Code Supp. 32-2901 (6) says "'Member' shall mean any teacher included in the membership of the retirement system as provided in Section 32-2903," and Sec. 32-2903 after providing who .has membership states in Paragraph 4 that "the membership of any member shall terminate if he' dies, retires under the retirement system . . . etc."
To hold in accordance with these last two sections that "membership'' as used in Sec. 32-2904 (2), ceases and no longer continues when a member retires and his prior service certificate becomes void would make the T'eachers' Retirement Act so ambiguous and contradictory as to defeat its purpose. Creditable service on which a retirement allowance is based includes in part the service certified by a prior service certificate (Par. 4, Sec. 32-2904) and if a certificate became void because retirement terminated membership, then a

58
great portion of the creditable service and consequent retirement allowances would be voided.
It is therefore quite obvious that insofar as Sec. 32-2904 (2) is concerned, a retired member still has membership and his prior service .certificate is final and conclusive for retirement purposes as to such service, though he may within one year from the date of issuance or modification of his certificate request the Board of Trustees to modify or correct his prior service certificate.
The teacher in question has, according to the stated facts, clearly slept away her rights to request the Board of Trustees to modify or correct her prior service certificate, and her present prior service certificate is final and conclusive as to her prior service. This is certainly true insofar as any right or privilege of hers is concerned.
On the other hand, I am inclined to believe that the Board of Trustees of the System have the power, on their own initiative and at their own discretion, to correct any error in the records whereby a member or beneficiary receives more or less than he would have been entitled to receive l1ad the records been correct, and that the Board insofar as they deem practicable may adjust payments so the beneficiary will receive the actuarial equivalent of what he would have been entitled to receive if the records had been correct. See Section 11 of the Teachers' Retirement Act, Ga. Code Supp. 32-2924, whieh is as follows:
"32-2924. Correction of errors.-Should any change or error in the records result in any member or beneficiary receiving from the retirement system more or less than he would have been entitled to receive had the records been correct, the Board of T'rustees shall have the power to correct such error and to adjust as far as practicable the payments in such a manner that the actuarial equivalent of the benefit to which such member or beneficiary was correctly entitled shall be paid. (Acts 1943, pp. 640, 668.)
EDUCATION-Teachers' Retirement System As a matter of policy, the accumulated contributions of a member murdered by her husband are payable to her estate even though her husband was designated as beneficiary.
August 5, 1950
Hon. J. L. Yaden, Executive Secretary-Treasurer Teachers' Retirement System of Georgia
OFFICIAL OPINION FACT'S:
A member of the Teachers' Retirement System who had designated her husband as her beneficiary, was shot and killed by her husband who in turn shot and killed himself. The deceased couple had no children. PROBLEM:
What disposition shall be made of the accumulated contributions of a member of the 1'eachers' Retirement System who had designated her husband as her beneficiary and who was shot and killed by her husband who in turn shot and killed himself ? ANSWER:
In accordance with the opm10n of the Attorney General rendered to the Teachers' Retirement System under date of October 3, 1949, concerning the case of Sara Phillips Mayo, as a matter of public policy the accumulated contributions of a member murdered by her husband are payable to her estate even though her husband was designated as beneficiary.

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It is suggested that you contact the Ordinary of the County of the deceased member as to who has been made the legal representative of her estate. You might further ask the Ordinary, if there has been no duly appointed legal representative, that he take the steps available to him under the law of Georgia to have the estate represented so that there will be a duly qualified person to whom you would be authorized to pay the deceased member's accumulated contributions.

EDUCATION-Teachers' Retirement System The Board of Trustees of the Teachers' Retirement System may continue the membership of a member for such period as he is in the armed forces of the United States or other emergency wartime service oi the United States approved in advance by the Board.

Hon. J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia

August 23, 1950

OFFICIAL OPINION QUESTWN:
Does the Board of Trustees of the Teaehers' Retirement System of Georgia have the right to extend the time for more than two years, if necessary, that a member may be out of the teaching profession while in the Armed Forces, without losing his membership and prior service?

ANSWER:
The provision of the Teachers' Retirement Act dealing with your problem is Paragraph (4) of Code Section 32-2903, Ga. Code Ann. Supp., which is as follows:
"(4) The membership of any member shall terminate if he dies, retires under this retirement system, or withdraws his contributions, or if in a period of three consecutive years after becoming a member he renders less than one year of service, or if after he becomes a member he is employed by an employer operating a local retirement fund. Notwithstanding the foregoing, the Board of Trustees may continue the membership of a member while in the armed forces of the United States or other emergency wartime service of the United States approved in advance by the Board of Trustees, or if he ceases to be a member by reason of illness preventing him from rendering service for as much as one year in a period of three consecutive years, or if the failure of such teacher to render service for the required time is due to absence on maternity leave. No benefit under the retirement system other than the payment of the contributions of such a teacher with allowable interest credits shall become payable to him or on his account while he is not in service as a teacher and no contribution shall be made to this -system by the State or other employer by reason of his service during any such time, except as herein otherwise provided. (Acts 1943, pp. 640, 645; 1947, p. 1494.)"
Thus it would seem that under this provision of the Act the Board of Trustees may continue the membership of a member while in the armed forces of the United States or other emergency wartime service of the United States approved in advance hy the Board of Trustees for such time as that member is in the armed forces or other emergency wartime service. It is my opinion that the law as it stands gives the Board this power and that there is no need for any additional legislation in this regard.

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EDUCATION-Teachers' Retirement System An applicant for retirement benefits whose service ceased as of June 30, 1943, at the age of 61, after 36 years of prior service, the greater portion of which was rendered as a secretary for the Athens City Schools and the University of Georgia, would be entitled to retirement benefits under the System.
September 25, 1950
Honorable J. L. Yaden, Secretary-Treasurer Teachers Retirement System of Georgia
OFFICIAL OPINION FACTS:
Application has been made for teacher retirement benefits under House Bill No. 197 (presumably an amendment to the Teachers Rethement System Act of 1943, Georgia Laws 1947 p. 1494). The applicant, who was 68 years old on March 7, 1950, has filed for 36 years of prior service, approximately 6 years of which was rendered as a public school teacher and the remainder as a school secretary in the Athens City Schools and the University of Georgia. Both the applicant's teaching and secretarial service ended on June 30, 1943. PROBLEM:
Can the applicant qualify for teacher retirement benefits under House Bill No. 197 since the major portion of her service was rendered as a school secretary? ANSWER:
Under the T'eachers' Retirement Act as originally passed in 1943, the above described applicant would not have been classed as a teacher as the word "teacher" was defined under Paragraph 5 of Section 1 of that Act. Had said applicant come within the definition of a teacher she would have been a member under Paragraph 2 of Section 3 of the Act as she would have been a teacher on January 1, 1943. In 1947 an amendment to the Teachers' Retirement Act was passed, House Bill No. 197, Georgia Laws 1947, page 1494, which provided that a teacher who had reached age sixty and had taught 35 years and had retired from service prior to the time the Teachers' Retirement Act became effective would 'be deemed a member of the Retirement System and entitled to its benefits. Therefore, by the 1947 amendment had the above described applicant come under the definition of the word "teacher" she would ha're been entitled' to retirement benefits. However, she was not a teacher as that word was then defined in the Act.
In 1950, Georgia Laws 1950, page 261, the Teachers' Retirement Act was further amended to enlarge the definition of the word "teacher" as follows:
" 'Teacher' shall mean any person employed not less than half time in the public day schools as a classroom teacher, or in a clerical capacity, or in the supervision of the public schools, or any employee of the State Board of Education or the State Board of Vocational Education employed in a teaching or supervisory or clerical capacity, or any bona fide teacher or supervisor of teachers or clerical employee employed and paid by the Board of Regents of the University System of Georgia, and all personnel of the Agricultural Extension Service of the liniversity of Georgia."
The word "teacher" also includes school librarians, and administrative officials who supervise teachers, and includes registrars of each unit of the University System, and the secretary and treasurer of the Board of Regents. The Board of Trustees determine in doubtful cases whether any person is a teacher as defined in the Teachers' Retirement Act.
It is my opinion, therefore, that while the Board of Trustees are now vested

61
with the authority to determine in doubtful cases whether any person is a teacher, that the applicant concerned in this problem would doubtless fall within the definition of a teacher as now defined by the Act and, therefore, under the remaining terms of the Act would now be entitled to apply for and receive benefits thereunder.
ELECTIONS-Absentee Ballots (Unofficial) 1. It is the duty of the Executive Committee to pay for the printing of absentee ballots and necessary forms. 2. It is the duty of the voter, or the immediate member of his family making application for absentee ballot to enclose postage or correct amount in legal tender necessary for the mailing of ballot to voter. 3. It is the duty of the County to pay the Board of Registrars for performing any duty of said Board pertaining to the carrying out of the absentee voters Act.
August 5, 1950
Mr. A. H. NeSmith I am in receipt of your letter of July 25, 1950, in which you ask the following
questions: 1. In the holding of a Democratic Primary is it the duty of the Executive
Committee or the County to pay for the printing of absentee ballots and necessary forms?
2. Who is responsible for the payment of postage and registration fees? 3. Is it the duty of the Executive Committee or the County to pay the Board of Registrars for the actual handling of mechanics of mailing and receiving the absentee ballots as provided by law? Georgia Code Annotated Supplement, Section 34-3301 provides as follows: "34-3301. Right to vote by mail; notice to registrars or ordinary-Any voter, when required to be absent from the city or county, ward or district in which he is registered, may vote by registered mail; provided, that he or some member of his immediate family,-viz., husband or wife, father or mother, sister or brother, or son or daughter-shall give notice in writing of such intention to the registrars or the ordinary of his county, not less than 10 days nor more than 60 days prior to the primary or general election in which he may desire to participate. rActs 1943, p. 228.)" Section 32-3302 of the Georgia Code provides: "34-3302. Application for ballot-Said voter shall by registered mail forward to the registrars of the county of his residence a letter of application for a ballot, and shall enclose therewith postage, or the correct amount in legal tender, necessary for the return to him of a blank ballot, and full instructions as to marking the said ballot and its proper return to the said registrars. (Acts 1924, p. 186.)" Georgia Code Annotated Supplement Section 34-3305 sets out the registrar's: duty on receiving the application for an absentee ballot. !Georgia Code Annotated Supplement Section 34-3309 provides as follows: "34-3309. Ordinary to furnish blank ballots, ets., to registrars. Unused ballots-It shall be the duty of the ordir.ary of each county, at the expense of said county, to furnish the registrars of said county with a sufficient number of blank ballots, each properly sealed in an envelope marked 'ballot within,' and take their receipt for same. Within five days subsequent to the election, the registrars shall return to the ordinary all unused ballots in their original sealed envelopes and a list of the voters who have been furnished ballots as provided in this Chapter.

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Every officer of this State or of any political party, organization or association whose duty it is to furnish official ballots or blank forms necessary for any primary or general election shall furnish the same to the ordinary of each county at least 15 days prior to the date fixed for holding said election. (Acts 1924, p. 189; 1941, p. 367.)"
From the above-quoted Code Sections, in answer to your first question, it is my opinion that it is the duty of the Executive Committee to furnish the Ordinary the absentee ballots and necessary forms and envelopes for mailing the absentee ballot to the voter and returning same to the Board of Registrars.
In answer to your second question, it is my opinion that it is the duty of the voter or the immediate member of his family who gives the notice in writing as provided in Georgia Code Annotated Supplement Section 34-3301, to enclose postage or correct amount in legal tender necessary for the mailing, including registration fees, to the voter.
In answer to your third question, it is my opinion that it is the duty of the Board of Registrars to perform their duties as outlined in Georgia Code Annotated Supplement Section 34-3305 and that the County shall pay the Board of Registrars or the person designated by said Board to perform these duties for the Board.
ELECTIONS-Assistance in preparing ballot (Unofficial) Any voter may have the assistance of any two election managers jointly or separately or any freeholder to aid him in the preparation of his ballot.
May 30, 1950 Honorable E. M. Brewton
I am pleased to acknowledge your letter of May 25, 1950 relative to the procedure provided by law for assistance in preparing ballot for person unable to prepare his ballot due to his inability to read the ~nglish language, or by reason of blindness or the loss of the use of his hands or other physical infirmity.
The procedure provided by statute in such instances is contained in Section 34-1905 of the 1933 Annotated Code of Georgia, Pocket Supplement, and reads in part as follows:
"... Any voter applying to vote who shall state under oath in writing to any of the managers, which said oath may be administered by any of the managers, that by reason of his inability to read the English language, or by reason of blindness or the loss of the use of his hands or other physical infirmity, he is unable to prepare his ballot, may have the assistance of any two managers, jointly or separately, in the preparation of his ballot, or may select any freeholder of his choice to aid him in the preparation of his ballot. No voter shall at any time take or remove any ticket or ballot from the polling place. The managers shall preserve these written oaths or affidavits, and return them with the other election papers to the proper officials. (Acts 1922, p. 101; 1943, p. 290.)"
The above statute is clear in that a voter may have the assistance of any two managers, jointly or separately, in the preparation of his ballot, or he may select any freeholder of his choice to aid him in the preparation of his ballot. If the voter selects a freeholder, then the managers would not be authorized to be present in the voting booth during the preparation of the ballot by the voter and the freeholder.
Section 34-1917 of the 1933 Code of Georgia, Annotated, 1949 Supplement, provides that the above statutory provision shall be operative in every county and in all elections, and further provides that grand jury action is unnecessary. This Code Section reads as follows:

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"This law ( 34-1914 to 34-1916), shall apply in every county of this State, and to all elections by the people including State, district, county and municipal elections and including general, special and primary elections. The provisions of sections 34-1902 through 34-1912, providing for election supplies and equipment and the use and control thereof and for the management of elections, shall, except those parts thereof which are in conflict with the provisions of this law, also apply in every county of this State and to all elections by the people including State, district, county and municipal elections and including general, special and primary elections. No action by any grand jury shall be necessary to make the same effective."
ELECTIONS-Constitutional Amendments When a Constitutional amendment directly affects every county in Georgia, the 'Governor would be authorized to publish it in one newspaper in each county.
August 29, 1950
Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION FACTS:
In 1949 the General Assembly of Georgia adopted two Resolutions proposing -to the qualified voters of Georgia amendments to the Constitution, as follows:
"A Resolution proposing to the qualified voters of Georgia an amendment to the Constitution by striking therefrom Paragraph IV of Section I of Article V in its entirety, and inserting in lieu thereof a new paragraph providing for the election of U. S. Senator, Governor, Lieutenant Governor, State House officers, Justices of the Supreme Court and Judges of the Court of Appeals, in all primary elections, held by any political party, on a county unit basis; .to set forth the method and procedure to be followed; and for other purposes" and
"A Resolution to amend Paragraph 4, of Section 7, of Article 7 of the Constitution of the State of Georgia so as to include therein county Boards of Education as having authority to obtain and incur loans as therein provided." QUESTION:
Would these two proposed Constitutional amendments directly affect each county in this State so as to require publication in each county, or would publication of these two proposed amendments be required in only one newspaper in each Congressional District? ANSWER:
In an opinion dated September 17, 1948, copy of which I am hereto attaching for reference, a portion of Paragraph I, Section I, of Article 13, as follows:
"... 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 next general election at which election members of the General Assembly are chosen; and if such proposed amendment directly affects only one or more political subdivisions of the State, then it shall also be advertised in the area to be directly affected thereby; ..." was dealt with. In Paragraph No. 6, Subsection (c) of that opinion I held:
"(c) If any one or more of the proposals should directly affect every county in Georgia, you would be authorized to publish them in one newspaper in each county."
It is my opinion that since the above stated Constitutional amendments

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directly affect every county in the State, the Governor would be authorized to publish them in one newspaper in each county.
ELECTIONS-ELIGIBILITY-VOTER (Unofficial) A person who is delinquent in any state, county or school taxes is not ineligible to register and vote.
November 28, 1950
Honorable T. H. T'rice
I am in receipt of your letter of November 13, 1950 in which you ask if a person delinquent in any state, county, or school taxes is disqualified from voting.
In answer to your question I am quoting to you the pertinent provisions of the State Constitution on this matter.
Article II, Section I, Paragraph I (2-701) provides: "Elections by the people shall be by ballot, and only those persons shall be allowed to vote who have been first registered in accordance with the requirements of law." Article II, Section I, Paragraph II (2-702) provides that the disabilities referred to in this paragraph which makes a person ineligible to vote are found in Article II, Section II, Paragraph I, which reads as follows: "The !General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not ,be permitted to register, vote or hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned. 2nd. Idiots and insane persons."
Thus, it appears that there is nothing in the present Constitution or in any Ads of the General Assembly which would render a tax defaulter ineligible to register and vote. Prior to 1932, Article II, Section I, Paragraph III of the Constitution of 1877 provided in part, "to entitle a person to register and vote in any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election, and shall have paid all taxes which may have been required of him since the adoption of the Constitution of Georgia of 1877 that he may have had an opportunity of paying agreeably to law." An amendment to this paragraph, proposed by the General Assembly on August 14, 1931 (Georgia Laws 1931, page 102) and ratified on November 8, 1932, inserted "all poll taxes that he may have had an opportunity of paying agreeably to law" in lieu of the provision, "all taxes which may have been required of him since the adoption of the Constitution of Georgia of 1877 that he may have had an opportunity of paying agreeably to law." An Act approved February 5, 1945 (Georgia Laws 1945, page 129) provided that the payment of a poll tax shall not be a requisite of voting, so the requirement that a person shall have paid all poll taxes before being entitled to register and vote was omitted from the Constitution of 1945. The only reference which I find to tax defaulters in the Constitution of 1945 is in Article III, Section IV, paragraph VI (2-1606) relating to eligibility for the General Assembly, which provides in part as follows:
"... nor any defaulter for public money, or for any legal taxes required of him shall have a seat in either house .. .'

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ELECTIONS-Managers (Unofficial) In all primary elections, it is the duty of the authority of the political party holding the election to secure the necessary personnel.
June 19, 1950
Mr. Gus Sosebee I am pleased to acknowledge your letter of June 10, 1950, requesting my
advice as to who has the authority to appoint election managers. Your question is controlled by the provisions of Section 34-3201 of the 1933
Annotated Code of Georgia, which provides as follows: "Every political primary election held by any political party, organization,
or. association, for the purpose of choosing or selecting candidates for office, or the election of delegates to conventions in this State, shall be presided over and conducted in the manner and form prescribed by the rules of the political party, organization, or association holding such primary elections by managers selected in the manner pres.cri!bed by such rules. Such managers shall, before entering upon the discharge of their duties, each take and subscribe an oath that he 'will fairly, impartially, and honestly conduct the same according to the provisions of the law providing how primary elections shall be held in this State, and in accordance with the laws of this State governing regular elections for the offices of this State.' Should one or more of the managers thus appointed to hold such elections fail to appear on the day of election, the remaining manager or managers shall appoint others in their stead and administer to them the oath herein prescribed. The managers shall take the oath before a notary public or other officer authorized to administer oaths; but if no such officer can be conveniently had, the managers may administer the oath to each other. The oath, after being made and subscribed, shall be filed in the office of the clerk of the superior court of the county in which the primary election shall be held, within five days after an election.''
In all primary elections it is the duty of the county or city Democratic Executive Committees or other party authority of the political party holding the election, to secure the necessary personnel for the purpose of holding said primary election under such rules and regulations as they may adopt. A majority of the members of a committee is required to pass rules and regulations.
ELECTIONS-Primary Date The State Democratic Executive Committee may fix a date for holding a statewide primary earlier than sixty days before the General election.
March 13, 1950
Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUESTION:
Can the State Democratic Executive Committee fix a date for holding a statewide primary earlier than sixty days before the November General election'? ANSWER:
Prior to August 15, 1908, political parties were free to select any date they might wish for holding primaries and, indeed, they were at liberty to have a separate primary for each of the major offices, or to fix separate dates for different counties. By Act of August 15, 1908, now codified as Section 34-3203 of the Code, parties holding primaries were required to hold a single primary on the same date

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throughout the State for the nomination of candidates for Governor, State House officers, members of Congress, United States Senators, Appellate Judges, Superior Court Judges and Solicitors, and members of the General Assembly. Under this Act, primaries were required to be held:
"... at such date as may be fixed by the State Executive Committee ... provided that said Executive Committee shall not fix the date for said general primary earlier than sixty days before the general State election ..."
By Act of August 14, 1917, the Legislature enacted what is known as the "Neill Primary Law" now codified as Section 34-3212-34-3218. The "Neill Primary Law" was a comprehensive Act purporting to cover the entire field of regulating primary elections. Several of the same provisions included in the Act of August 15, 1908 were repeated in identical language in this later enactment. The 1917 law provided in part, that:
" ... such party ... shall cause ... all candidates ... to be voted for on one and the same date throughout the State, which is hereby fixed as the second Wednesday in September of each year in which there is a regular general election." (Emphasis added.)
The 1917 Act did not refer expressly to the 1908 law, although it contained the familiar provision that, "All laws and parts of laws in conflict with this Act are hereby repealed.''
It is abundantly clear that if the 1908 Act and that of 1917 are in irreconcilable conflict, then the earlier Act was repealed by the later. Collins v. Russell, 107 Ga. 423; Edalgo v. Southern Railway Co., 129 Ga. 258, 264.
An Act allowing a political party to choose any date within a period of sixty days conflicts irreconcilably with a subsequent .Act denying political parties any choice whatever. As the United .States Supreme Court said upon a similar issue:
" ... it is so plain that both Acts can not be carried out that it is unnecessary to discuss the question." Chase v. United States, 256 U.S. 1, 9.
I am therefore of the opinion that, since the two Acts cannot be reconciled, the Act of 1908 was repealed by that of 1917. My conclusion on this matter is not in any way changed by the fact that both the 1908 Act and that of 1917 were codified in the Code of 1933.
In Williams v. Western Atlantic Railroad Co., 142 Ga. 696, the Supreme Court unanimously ruled that:
"Where two sections of the Code are in conflict, both taken from Acts of the Legislature, the one which is taken from the latter Act will prevail over the former as the last expression of the law-making power on the subject."
Other decisions of that Court to the same effect are: Lamar v. Allen, 108 Ga. 158; Berry v. Jordan, 121 1Ga. 537; Puryear v. Farmers Mutual Insurance Association, 137 Ga. 579; Staten v. State, 141 Ga. 82.
Section 34-3203 has also been repealed for a further reason. The Act of 1917, codified as Section 34-3212, is a comprehensive Act which purports to cover the whole subject matter covered by the Act of 1908. Indeed, the 1917 Act reiterated many of the same provisions first set out in the Act of 1908. As was clearly stated by the Court of Appeals in Thornton v. State, 5 Ga. App. 397:
"Where the latter of two Acts covers the whole subject matter of the earlier one, not purporting to amend it, and plainly shows that it intended to be a substitute for the earlier Act, such latter Act will operate as a repeal of the earlier one though the two are not repugnant."
To the same effect are the decisions of the Supreme Court in Johnson v. Southern Mutual Building & Loan Association, 97 Ga. 623; Western & Atlantic Railroad Co. v. Atlanta, 113 Ga. 554; and City of Atlanta v. Goodman, 183 Ga. 834.

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In Horn v. State, 114 Ga. 509, the Supreme Court stated: "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 charter, or to deal exhaustively with the subject of all or a part of the original Act, and a portion of the original Act is left out, such omitted portion is repealed by implication.... This conclusion is not altered by the fact that the former statute has been embodied in the Code in the process of codification." By Act approved February 7, 1950, the Legislature deleted from Section 34-3212 the words (the date) "is hereby fixed on the second Wednesday in September ...," and substituted the "day shall be fixed by the State Executive Committee of the political party holding such primary election." Can it be said that when the legislature, in 1950, restored to the parties the privilege of choosing the date of their primary election, it revived the sixty-day restriction contained in Section 34-3202? The decisions of our Supreme Court have clearly shown that the answer to this question should be in the negative. Warren v. Suttles, 190 Ga. 311, 313; Butner v. Boifeuillet, 100 Ga. 743. In each of these two cases, it was pointed out that where a statute repeals absolutely prior existing law and substitutes for it another and more comprehensive scheme of legislation which undertakes to deal with the whole subject to which the prior statute relates, a repeal of the last enactment does not indicate a legislative intent to return the scheme of things theretofore existing. More especially is that true where, as in this case, there is no repeal of the repealing Act, but rather a modification thereof. It is therefore my opinion that political parties are authorized to fix a date for holding Statewide primaries earlier than sixty days before the November General election.
ELECTIONS-Primary Recounts (Unofficial) Grand juries are without statutory authority to conduct re-counts in party primary elections.
September 18, 1950 Honorable J. Julian Bennett Representative, Barrow County
I am in receipt of your letter of August 30, 1950, in which you ask if grand juries are authorized to open ballot boxes and conduct a re-count of ballots cast in a Democratic primary election after the County Democratic Executive Committee has refused a recount upon request of a losing candidate.
Grand juries are given some duties in connection with elections in Georgia, for example, they are required to examine voters' lists (Ga. Code Sec. 34-1801 and Sec. 59-308), but there is no statutory authority for a grand jury to conduct a recount in a primary election.
The statutory provisions for recounts in primary elections are to be found in Georgia Code Annotated Section 34-3225, Georgia Laws 1941, pages 432 et sequitur. The statute provides that the recount shall be made by a committee composed of representatives of the winning and losing candidates, together with a Judge of the Superior Court of an adjoining Circuit.
In the absence of statutory authorization to a grand jury, and inasmuch as there is a statutory procedure for recounts in primaries, it is definitely my opinion that the answer to your question is in the negative, that is, grand juries are not authorized to conduct recounts of ballots cast in party primaries.

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ELECTIONS-Procedure Procedures necessary for an independent candidate for a State office, not the nominee of a political party, to have his name entered on the offical ballot for the general election.

Hon. Ben W. Fortson Secretary of State

September 25, 1950

QUEST'ION:

OFFICIAL OPINION

1. What procedures are necessary for an independent candidate for a State

office, not the nominee of a political party, to have his name entered on the official ballot for the general election?
2. What is the closing date for filing notice of candidacy?

ANSWER:

1. I am of the opinion that under Section 34-1904 of the Code of Georgia Annotated 1949 Temporary Supplement, which are codifications from the Acts of

1922, page 100, and amended by the Acts of 1943, page 292 and the Acts of 1948, Extra Session, pages 3 and 4, a candidate for any State office who is not the nominee of a political party would have to:

(1) File notice of their candidacy with the Secretary of State, giving their name and office for which they are candidates, at least 30 days prior to the general

election in November;

(2) Candidate must file a petition ,signed by not less than five per cent of the registered voters in that territory covered by the office;
(3) Candidates must make a sworn statement which must accompany the petition of registered voters, to the effect that each of the names appearing in the

petition of registered voters was a duly qualified and registered voter at the last general election.

2. I am of the opinion that October 7 is the last day on which a person may file notice of his candidacy.

ELECTIONS-Registrars (Unofficial) The Tax Commissioner is a deputy registrar.
September 21, 1950 Honorable J. E. Harriss
I am in receipt of your letter of August 22, in which you ask if the 1949 Voters' Registration Act (Georgia Laws 1949, p. 1207), takes the duty of registering voters out of the office of Tax Commissioner.
I am pleased to call your attention to Section 9 of the Act which provides as follows:
"The tax commissioner or tax collector of the county shall be a deputy to the board of registrars and shall perform the duties required of him under this Act. Said tax collector or tax commissioner may, with the assent of the board of registrars, designate one or more of his own deputies, to act as additional deputies. The registrars may appoint additional deputies and hire clerical help to aid them in the discharge of their duties."
The above section provides that the tax commissioner shall be a deputy of the board of registrars and there are certain duties which the tax commissioner is required to perform under the provisions of the Registration Act and they are

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specifically set out in Section 23, 24 and 25 of the Act and are self-explanatory. These are in addition to the duty of acting as a deputy registrar.
It is my view that insofar as to receiving of registration of voters, the tax commissioner acts only as a deputy to the board of registrars and would perform only the duties delegated to him by the board of registrars of the county. The duties of the tax commissioner set forth in Sections 23, 24 and 25 of the Registration Act are duties to be performed by the tax commissioner separate and distinct from his duties as a deputy of the board of registrars.
ELECTIONS-Registration When the closing date falls on Sunday, there is no extra day granted.
March 27, 1950 In response to the March 27, 1950, request of: Honorable Ben W. Fortson, Jr. Secretary of State
OFFICIAL OPINION QUESTION:
What is the deadline date for registration when the date, as computed by law, falls on a Sunday? ANSWER:
Article III, Section IV, Paragraph II of the Constitution reads as follows: "The first election for members of the General Assembly under this Constitution shall take place on Tuesday after the first Monday in November, 1946, and subsequent elections biennially on that day until the day of election is changed by law." This day falls on November 7, 1950. Section 14 of the Registration Act reads, in part, as follows: "The registrars shall, in each year in which there is an election for IGovernor or members of the General Assembly, cease their operations of taking applications from persons desiring to vote in such election six months before the date of such election." Six months before November 7, 1950 is May 7, 1950. I am of the opinion that the deadline date would be restricted to May 7, 1950, and no extra day would be granted because of this date being on Sunday. As a practical matter, this means that the last day for registration will be on Saturday, May 6, 1950. I base this conclusion on the fact that the Courts of this State have held that the general rule regarding the exclusion of either the first or the last day in the computation of time or the granting of an additional day when the last day falls on Sunday, does not apply when the time to be computed is set out by months or years. In the case of Brown v. Emerson Brick Company, 15 Ga. App. 332, the Court held as follows: "This court has held that the Code provision-that when a number of days is prescribed for the exercise of any privilege or the discharge of any duty, and the last day falls on the Sabbath, another day shall be held in the computation.......:is not applicable so as to include Sundays where the computation is of months or years." In the case of Rusk v. Hill, 117 Ga. 722, the Court criticized by dicta this rule. However, our Appellate Courts have continued to follow this rule. For further cases concerning this subject, see: 172 Ga. 127, 107 1Ga. 699, 145 Ga. 601, 157 Ga. 538, 97 Ga. 798.

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ELECTIONS-Registration (Unofficial) 1. Notices of cancellation of registration should be mailed to everyone who is registered but has not voted within the last two calendar years. 2. Any person whose registration has been cancelled must re-register in the manner provided for original registration.
May 3, 1950
Honorable J. W. Griner I am pleased to acknowledge receipt of your letter of April 24, in which you
state: "In regard to the notices that were mailed to those who had not voted in two
years, does this apply to calendar year, or two years from the 1948 primary? "Under the present law, is it the duty of the Clerk of the Court to furnish the
Tax Collector with a list of those who have not voted in two years. As you will remember this information is filed with the Clerk by the Registrars and the Election Managers after the consolidation. I know that it is the T'ax Collector's duty to check the cards filed in the tax office on the newly registered.
"In regard to those to whom notices have been mailed, that do not request reinstatement to the Tax Collector before the expiration date, can the Registrars use their discretion in putting them back on the list at some later date, where no error can be found."
The last sentence of Section 23 of the Voters' Registration Act reads as follows:
"As the 1948 voters' list is preserved for elections which may take place prior to the preparation and filing of the first general election list hereunder, the Tax Collector shall until such time conform to the provisions of Section 34-115 of the 1933 Code as amended by Act approved February 5, 1945 and more fully appearing on page 133, etc., of the Acts of the General Assembly of 1945, but the time for mailing the notice provided for in said Code section is hereby extended for an additional fifteen days."
Thus, it is necessary to examine the Act of 1945 to determine what the law is as to the suspension of voters at this time. The applicable part of this act provides:
"Within sixty (60) days after the first day of January in each year beginning on January 1, 1947, the tax collector or tax commissioner, as the case may be, shall revise and correct the registration records in the following manner:
"He shall examine the registration cards and shall suspend the registration of all electors who have not voted in any general, special, or primary election, state, county or municipal, within the two years next preceding said first day of January, except as may be forbidden by Article 2, Section 1, Paragraph 5 of the Constitution of the State of Georgia; provided, however, that on or before March 1st of said year he shall mail to each elector at the last address furnished by the registrant, a notice substantially as follows:
"You are hereby notified that according to state law, your registration as a qualified voter will be cancelled for having failed to vote within the past two years, unless on or before April 1st, of the current year you continue your registration by signing the statement below and returning it to this office or by applying in person."
In answer to your first two questions it appears that every year prior to the preparation and filing of the first general election list under the Voters' Registration Act it is the duty of the Tax Collector, or Tax Commissioner, as the case may be, to examine the registration cards, and on or before March 16 mail to every person who has not voted in any election within the two preceding calendar years

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a notice that the registration of such person will be cancelled unless on or before April 1 he signs an enclosed statement and returns it to the Tax Collector's office, or unless he applies in person.
Section 23 of the Voters' Registration Act, as amended in 1950, which will regulate the suspension of electors in every year beginning 1954 makes it the duty of the Tax Collector or Tax Commissioner, as the case may be, to examine the registration cards and suspend the voters in the same manner as does the Act of 1945.
The answer to your third question is found in the following sentence which appears in the 1945 Act (applicable as to suspension of voters until preparation and filing of the .first general election list under the Voters' Registration Act) and the Voters' Registration Act of 1949 as amended in 1950:
"Any elector whose registration has been thus cancelled may re-register in the manner provided for original registrations."
Hence, it appears that those persons who do not request continuation of registration for failure to vote in a two-year period may not be put back on the list by the registrars, but must re-register in the manner that is provided for original 1egistration.
ELECTIONS-Voting Booths (Unofficial) It is the duty of the Ordinary to furnish voting rooms or booths.
April 3, 1950
Honorable P. T. Duncan This will acknowledge receipt of your letter of March 30, 1950 in which you
request information regarding the furnishing of booths at voting precincts. I refer you to Section 34-1902 of the Code of Georgia which reads as follows: "Whenever any election, whether general, special or primary, State, county,
municipal, city, town or village, or any election to determine any matter or question which is or may be referred to the vote of the people of the State, of a county, or of a city, town or village, or any election of any kind or character is to be held, it shall be the duty of the ordinary of each county at the expense of the county, or in a case of a purely municipal election, at the expense of the municipality, to .provide at each polling place, a private room or rooms, a booth or booths, or an enclosure or enclosures, with such compartments therein as may be necessary to accommodate the persons qualified to vote at such polling places, and shall furnish each compartment with a shelf or table for the convenience of the electors in the preparation of their ballots. Each booth or compartment shall be so arranged that it will be impossible for one elector at a shelf or table in one compartment, or anyone else, to see an elector, at a shelf or table in another compartment in the act of marking his ballot. Each voting shelf or table shall be kept supplied with conveniences for marking the ballots. No person or persons, other than the voter himself while occupying the booth or while in the immediate act of voting, shall come within 10 feet of said booth or booths while said polls are open. This section shall not apply to any of the officers in charge of holding said election."
This Code ,Section would seem to contain the information which you desire. A case which deals with this particular Code ,Section is Moon v. Seymour, 182 Ga. 702. The first headnote of that case reads as follows: "The law declared in the Code 34-1902, is mandatory, and not merely direc-

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tory; and a complete disregard by the county authorities of that statute renders void and illegal an election in a county where the Australian ballot system has been adopted as provided by law."
ELECTIONS-Voting Places (Unofficial) No elector in a primary can vote in a militia district or ward other than the one in which he resides if an election precinct is located in such district or ward. June 19, 1950
Mr. Frank L. Forester I am pleased to acknowledge your letter of June 12, 1950, in which you ask
my advice as follows: "Our Democratic Executive Committee, of which I am a member, desires to
hold the election for colored and white at separate voting places. In fact we would like to hold the election for the Negroes at their schoolhouse, which is in a separate location of town from the courthouse where the whites regularly vote.
"Please advise me if we have the authority to set up this voting place as indicated.''
While I cannot give you an opinion, it is a pleasure for me to give you the following authorities which apply to your question.
Section 34-3204 of the 1933 Annotated Code of Georgia provides: "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." Section 23-701 (4) provides: "The ordinary, when sitting for county purposes, has original and exclusive jurisdiction over the following subject-matters to wit:
* * *
"4. In establishing and changing election precincts and militia districts." These sections of the law should be construed in connection with the law prescribing the duties of the registrars in preparing the list of voters, and especially Section 34-404 which requires the registrars to prepare the list of registered voters alphabetically, "arranged by militia districts, and, in case a city is located in the county, by wards of the city," and further provides that said list as thus prepared shall be used in party primary elections to nominate candidates for the offices to be filled at general elections. Thus it will be seen that the law fixes the place at which a person who is duly registered may vote in a primary election. If he lives in a militia district in which there are two voting precincts other than in incorporated cities or towns, then he may vote at either of said precincts. If he lives in a militia district where there are two cities or towns, he would be required to vote in the city in which he resides, and if the city is divided into wards, and there is a precinct in his ward, then he would have to vote at the precinct in said ward. As is seen from Section 34-404 of the Code, it is the duty of the registrars to arrange the voting lists according to militia districts and wards. No duty or authority is placed upon the County Democratic Executive Committee to perform this service. Seeton 34-138 of the Annotated Code of Georgia, 1949 Temporary Supplement, codified from the Acts of 1949, pages 1204, 1223, provides as follows: "The registrars shall, at or before the hour appointed for opening the polls, place in the possession of the managers of the election at each voting precinct in

73
the county one or more printed or clearly written copies of the lists of registered voters for such militia district or city ward in which the voting precinct is situated, said list to contain all the information hereinbefore provided for; and the registrars shall, in like manner, place in possession of the election managers of the voting precinct at the courthouse, at the county seat, proper lists for each militia district, the voting precinct of which is situated outside of an incorporated town, The list for a given district or ward may be divided into as many sections as there are ballot boxes in said district or ward. Said list of registered voters shall be duly authenticated by the signatures of two of said county registrars."
Your attention is called to the provision of Section 34-138 above cited in which it is provided, "The list for a given district or ward may be divided into as many sections as there are ballot boxes in said district or ward."
It is my personal view that no elector in a primary election can vote in a militia district or ward other than the one in which he resides if an election precinct is located in such district or ward, and that the list of registered voters for a given district or ward may be divided into as many sections as there are ballot boxes in said district or ward. It is my further view that the number of ballot boxes in a given militia district or ward precinct is controlled by the provisions of Section 34-3209 of the 1933 Code.
Of course, you realize that what is said herein is purely unofficial and is binding upon no one, for the reason that under the law prescribing my duties I am not authorized to render any official opinion with reference to these subjects.
EMPLOYEE'S RETIREMENT SYSTEM OF GEORGIA-Bonds Interpretation of Sections 4 and 5 of the Public Employees Honesty Blanket Position Bond.
August 10, 1950 Hon. W. Frank Delamar Executive Secretary Employee's Retirement System of !Georgia
OFFICIAL OPINION FACTS:
The United States Fidelity and Guaranty Company (the Surety) indemnified the Secretary and Treasurer (the Obligee) for the use and benefit of the Employees' Retirement System of Georgia (the Insured) against losses by the Insured, occasioned by Employees in the amount of $5,000.00 on each of the Employees under a Public Employees Honesty Blanket Position Bond.
Section 4 of said bond is as follows: "Regardless of the number of years this bond shall continue in force and the number of premiums which shall be payable or paid, the liability of the Surety under this bond on account of any one Employee shall not be cumulative in amounts from year to year or from period to period." Section 5 of said bond, as amended by Rider J, is as follows: "This bond shall be deemed canceled as to any Employee: (a) immediately upon discovery by the Obligee or the Insured of any fraudulent or dishonest act on the part of such Employee; (b) upon the death, resignation, or removal of such Employee; or (c) at 12 o'clock night, upon the effective date specified in a written notice served by the Surety upon the Obligee and the Insured, or sent by registered mail. Such date, if the notice be served, shall be not less than thirty days after such service, or if sent by registered mail, not less than thirty-five days after the date borne by the sender's registry receipt.

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This bond shall be deemed canceled as an entirety at 12 o'clock night upon the effective date specified in a written notice served by the Obligee or the Insured upon the Surety or by the Surety upon the Obligee and the Insured, or sent by registered mail. Such date, if the notice be served by the Surety, shall be not less than thirty days after such service, or if sent by the Surety by registered, not less than thirty-five days after the date borne by the sender's registry receipt. The Surety shall, on request, refund to the Obligee or the Insured the unearned premium computed (a) pro rata, if this bond be cancelled at the instance of the Surety; (b) pro rata on the basis of a full annual premium as though this bond were issued for a term of one year, if cancelled by the Obligee or the insured during the first year of any three year premium period; or (c) at customary short rates, if canceled or reduced by the Obligee or the Insured after the first year of any three year premium period.
If any of the cancelation provisions set forth in either or both of the foregoing paragraphs of this Section are prohibited or made void by any law controlling the construction of this bond, such provisions to the extent that they are so pro hibited or made void shall be deemed to be nullified and of no effect.
FIRST QUESTION:
Would the Employees' Retirement System be protected under this bond to the extent of $5,000.00 should it be found that while the bond was in force an Employee embezzled $1,000.00 in each of five consecutive years, the total amount being discovered during the sixth year while the bond was still in force in view of Section 4 of said bond quoted above?
ANSWER T'O FIRST QUESTION:
It is understood that the Agent of the Bonding Company concerned feels that the intent of Section 4 was to limit the liability to a total of $5,000.00 and the wording was to prevent an accumulation of $5,000.00 for each year while in force. It is the opinion of this office, however, that such intent is not clearly set forth in Section 4, and that under Section 4 the liability of the Surety under this bond on account of any one employee might be limited to a loss of less than $5,000.00 occasioned by the employee during the first year or first period of the bond and that the System would not be necessarily indemnified against additional losses occasioned by the same employee in subsequent years or periods, even though the total amount of all such losses was less than $5,000.00.
This office recommends that a Rider be attached to the policy, making the intent of Section 4 absolutely cleal. Such a Rider might provide that Section 4 read as follows:
"Regardless of the number of years this bond shall continue in force and the number of premiums which shall be payable or paid, the liability of the Surety under this bond on account of any one employee shall not exceed the total amount of the indemnity on each employee as herein above defined."
SECOND QUESTION:
Does Section 5 of said bond quoted above mean that after the Retirement System office had discovered a dishonest act on the part of an employee, or after it had discharged an employee that the company would still be liable for a fraudulent act prior to discovery, and/or prior to separation?
ANSWER TO SECOND QUESTION: It is the opinion of this office that under the terms of this bond, of which
Section 5 is only a part, that if the Retirement System discovered a dishonest act on the part of an employee, the Surety Company is liable for fraudulent acts of

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such employee prior to this discovery, and that even after such an employee is discharged, the Surety Company is liable for the fraudulent act of an employee committed prior to discovery and prior to separation. The Surety would not be liable for an additional fraudulent act committed prior to separation but after a discovery of a prior fraudulent act of an employee by the System. Section 6 of the bond which limits the time for bringing a proceeding to recover a loss after the cancellation of this bond still applies.
EXECUTIVE DEPARTMENT-Governor The Governor of Georgia has no authority to cede exclusive jurisdiction to the United States over lands acquired by the United States. This must be done by an Act of the 'General Assembly.
August 5, 1950 Honorable Herman Talmadge Governor of Georgia
OFFICIAL OPINION FACTS:
There is now in the offing a proposal to designate Turner Air Force Base as a permanent installation for purposes of the Wherry Act Housing Public L~ 211. It appears that Senator Walter F. George has notified the Albany Chamber of Commerce that the Air Force intends to so designate this base in the very near future subject to and contingent upon the donation of the land comprising this installation to the government in fee simple and cession of exclusive jurisdiction to the United States by the State of Georgia. It further appears that the land in question will be donated to the Federal Government by persons owning same.
QUESTION: Does the Governor of IGeorgia have the authority to cede exclusive jurisdiction
to the United States under the circumstances?
ANSWER: Section 15-201 of the Code of Georgia of 1933 reads as follows: "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."
I am of the opinion that this Code Section does not contemplate the cession of jurisdiction to the United States by the Governor but instead contemplates that such cession shall be granted exclusively by the General Assembly. Matters affecting sovereignty and jurisdiction are and always have been under the control of the General Assembly. All cessions of jurisdiction to the United States have been carried out by legislative enactments.
I, therefore, reach the conclusion that the Governor of Georgia does not have authority to cede exclusive jurisdiction to the United States under the circumstances and that this must be done by an Act of the General Assembly of Georgia.

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EXECUTIVE DEPARTMENT-Merit System The State Personnel Board may approve or disapprove the employment of persons who have reached the mandatory retirement age, and the Board would be authorized to rely on the recommendation of the department seeking the employee that such employee had the requisite professional, scientific or technical skills unless the Board knew or had reason to believe the facts were otherwise.
August 22, 1950
Hon. Edwin L. Swain, Director State Merit System
OFFICIAL OPINION
PROBLEM: The State Personnel Board requests a legal interpretation of their responsi-
bility in approving persons for employment under Section 5, Paragraph 1 (b) of the Employees Retirement Act of Georgia, with specific regard to the Personnel Board's authority to determine whether or not persons who have attained mandatory retirement age possess professional, scientific and/or technical skills, or whether the Personnel Board had the authority to approve or disapprove such persons for employment regardless of the skills they may possess.
ANSWER: Paragraph 1 (b) of Section 5 of the Employees Retirement Act, Ga. Laws
1948-1949, pp. 138, 144, is as follows: "(b) From and after July 1, 1950, until June 30, 1955, every employee cov-
ered under the terms of this Act shall be retired on the first day of the calendar month next succeeding that in which he attains the age of seventy-five (75) years. Every such employee who has attained the age of seventy-five (75) years, shall be retired forthwith. On and after June 30, 1955, every such employee who at that time has attained the age of seventy (70) years, shall be retired forthwith, and thereafter every such employee must be retired on the ,first day of the calendar month next succeeding that in which he attains the age of seventy (70) years, provided that nothing in this Act shall preclude the employment of persons with professional, scientific and/ or technical skills who have attained the age of seventy (70), subject to the approval of the State Personnel Board, but such persons shall not be eligible to any pension benefits provided by this Act."
It is my opinion that under the foregoing provision no person who has attained the age of seventy may be employed without the approval of the State Personnel Board, and that the Board may disapprove if they see fit, the employment of a person who does possess professional, scientific and/or technical skills. As far as this provision of the Act is concerned, it would seem that there are no special factors which the State Personnel Board would be required to consider in approving or disapproving such employment if such employment is in accordance with the law. This law requires that a person employed under this provision must have professional, scientific and/or technical skills. If the Board knew or had good reason to believe that a person suggested for employment under this provision lacked professional, scientific and technical skills, they would certainly be authorized to and should disapprove the employment. On the other hand, if the Board had no knowledge of such person's professional or scientific skills and his employment was recommended in good faith by the department seeking his services and that department felt that such a person had the requisite skills, then it is my opinion that the State Personnel Board would be authorized to approve such a person's employment without any specific investigation and determination

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on the part of the Board as to that person's professional, scientific or technical skills, if that person's employment otherwise met with the Board's approval.
In other words, the State Personnel Board has a right to rely on the various departments cop.cerned complying with the law, which in this case would be that no department would recommend employing any person past the retirement age unless they had professional, scientific or technical skills, and if such a recommendation has been made by a department, the State Personnel Board would be authorized to rely on it so far as that person's professional, scientific or technical skills were concerned unless the Board had reason to believe that the department's recommendation was not made in good faith or was contrary to the actual facts.
EXECUTIVE DEPARTMENT-Merit System The statutes placing the officials of the State Banking Department and the State Librarian under the Merit Sytsem supersede and repeal the previous statutes fixing the salaries for those departments and officials.
November 28, 1950 Ron. Edwin L. Swain, Director State Merit System
OFFICIAL OPINION FACTS:
The salaries of the Superintendent of Banks, the Assistant Superintendent of Banks, and the State Librarian have been fixed by law. Subsequently, Merit System laws have been enacted which bring these positions under the classified service and under the jurisdiction of the State Personnel Board. QUESTION:
Do the Merit System Acts supersede the previous statutes fixing the salaries of the above positions? ANSWER:
Both the Act bringing the State Librarian under the Merit System (Georgia Laws 1949, page 1159, Section 2) and the Act bringing all officials and employees of the State Department of Banking (Georgia Laws 1950, page 227, Section 4) contain the usual "repealing" clause which repeals all previous laws conflicting or inconsistent with the Merit System statutes in question. It has been uniformly held that in the absence of any supervening contrary fact, and none is here present, the repealing clauses shall be given full force and effect. Therefore, it is my opinion that sa)aries of the officials of the State Banking Department, and the State Librarian should be fixed under the provisions of the Merit System statutes.
FORESTRY AND GEOLOGY-Department of State Parks The Highway Department has authority to construct and maintain roads from and within the boundaries of the State Parks System.
January 23, 1950 Honorable Newton Moye, Director Department of State Parks
OFFICIAL OPINION QUESTION:
Does the State Highway Department have authority and would they be permitted to construct and maintain roads to and from and within the boundaries of Georgia State Parks?

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ANSWER: Code Section 43-140 Pocket Supplement (Acts 1937, pp. 264, 278) provides as
follows:
"Highway Department expenditures for parks.-The State Highway Department is hereby authorized and directed to expend State Highway funds in the construction, reconstruction, improvement, repair, and maintenance of roads within the boundaries of any land embraced within the State park system, and to relocate, construct, reconstruct, improve, repair and maintain roads leading from a State highway to any land or other property embraced within the State park system. Such roads are to be relocated, constructed, improved, repaired, and maintained in such manner as may be agreed upon between the Commissioner and the State Highway Department."
The foregoing provision of law was applicable to the then existing Division of State Parks, Historic Sites and Monuments under the Department of Natural Resources.
In 1941 the General Assembly created the present State Parks Authority (Acts 1941, pp. 257-258)in which it was provided that the Act would be deemed to be supplemental to other laws relating to the State Parks Authority in the following Section 43-633 which reads as follows:
"Chapter deemed supplemental to other laws.-The foregoing sections of this Chapter shall be deemed to provide an additional and alternative method for the doing of the things authorized thereby and shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in deregation of any powers now existing." (Acts 1941, p. 273.)
Moreover, it was further provided in Code Section 43-634 (Acts 1941, p. 273) that:
"This Chapter, being necessary for the welfare of the State and its inhabitants, shall be liberally construed to effect the purposes hereof."
It is obvious from the foregoing provisions that the Legislature did not intend to abrogate the authority of the Highway Department to construct and maintain roads to and from and within the boundaries of Georgia State Parks when the 1941 Acts were passed.
Likewise, in the acts of the General Assembly of 1943, pp. 180-184 in abolishing the Natural Resources Department and creating the Division of Conservation, it was pointed out that:
"The Department of State Parks, Historic Sites and Monuments shall have all the powers and duties heretofore vested in the Division of State Parks, Historic Sites and Monuments. The powers and duties hereby transferred shall be all those powers and duties not inconsistent with this Act."
This provision of the Acts of 1943 simply transferred all the powers of the Department of State Parks, Historic Sites and Monuments and the authority of the State Highway Department to construct and maintain roads to and from and within the boundaries of State Parks to the State Parks Authority or Department of State Parks, etc., and the State Highway Department as originally provided for in Code Section 43-140 (Acts 1937, pp. 264, 278).
It is, therefore, my opinion that the State Highway Department has the authority to build and maintain roads to and from and within the boundaries of Georgia State Parks. It must be concluded from the provisions of law herein cited that the Highway Department would be authorized to maintain such roads even though they are not certified into the State Highway Department System.

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FORESTRY AND GEOLOGY-Department of State Parks The Department of State Parks can legally purchase from the Franklin D. Roosevelt Memorial Commission a wood treating vat to be used for preserving parks construction materials.
April 13, 1951
Honorable A. N. Moye, Director Department of State Parks
OFFICIAL OPINION FACTS:
The Department of State Parks negotiated with Mr. Lee S. Trimble, Executive Director of the Franklin D. Roosevelt Memorial Commission, and with the approval of the Purchasing Department, to purchase from the Franklin D. Roosevelt Memorial Commission, a wood treating vat to be placed on one of the State Parks and used for preserving material for parks construction. QUESTION:
Does Mr. Trimble have authority to transfer title to said property? ANSWER:
It is my opinion that a sale of the property might be legally made from the Franklin D. Roosevelt Memorial Commission to the Department. However, I would suggest that you have the written approval of the Purchasing Department before the sale and transfer.
FORRESTRY AND GEOLOGY-Department of State Parks Where a specified minimum sum is appropriated for expenditure each year for development of Kolomoki State Park, no part of such sum may be used for normal operation of park system.
May 2, 1950
Honorable John M. Mann Chief Engineer Department of State Parks
OFFICIAL OPINION QUESTION:
Can the sum of $5,458.17 be transferred during the fiscal year beginning July 1, 1950 from the earmarked funds appropriated for the development of Kolomoki State Park to the normal budget for the operation and maintenance of the park system?
ANSWER: Paragraph (e) of Section 28 as it appears in the General Appropriations Act
of 1949 on page 1514 of the Georgia Laws reads as follows: "(e) For cost of operating Department of Parks-$268,000.00. Provided that of this appropriation an amount of not less than $50,000.00
shall be expended each year in the development of the Kolomoki State Park and Indian Mounds."
You will note that this section provides that an amount of not less than $50,000.00 shall be expended each year in the development of Kolomoki State Park.
This does not limit your expenditures for each fiscal year but it does place a minimum amount for expenditures for each fiscal year.
I, therefore, reach the conclusion that it will not be permissible to transfer the

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amount which you specified from the earmarked funds to your normal budget. In other words, I am of the opinion that the General Assembly plainly intended that not less than $50,000.00 be expended each year in the development of the Kolomoki State Park and Indian Mounds.

FORESTRY AND GEOLOGY-Department of State Parks The rights and duties of the Parks Department as to the Jekyll Island Property.

July 26, 1950

Honorable A. N. Moye, Director Department of State Parks

QUESTION:

OFFICIAL OPINION

What are the rights and responsibilities of the department as to the Jekyll Island property?

ANSWER:

This property came into possession of the State in 1947 by reason of a con-

demnation proceeding in Glynn Superior Court. On March 1, 1949 the Governor, acting under the provisions of Code Section 40-305, appointed a committee of five for the purpose of leasing said property, and on April 27, 1949 said committee entered into a contract with Mr. Barney Whitaker, Sr., and in said contract it is provided that Whitaker is to pay to the State Park Authority 20% of the gross

receipts of the above named facilities within 15 days after the close of each month.

Under the terms of said contract and lease between the State of Georgia and Mr. Whitaker, said lease shall expire January 15, 1951.

Thereafter the Legislature passed a bill known as "Jekyll Island State Park Authority Act" (Georgia Laws 1950, page 152). This Act created what is known as the "Jekyll Island State Park Authority." Under the above mentioned Act the

Jekyll Island property was leased to Jekyll Island State Park Authority. It was further provided in said Act as follows:

" ... provided further; the State of Georgia shall continue to receive all revenue from and pay all cost of the existing facilities, but shall have no right in or to, or responsibility for any new facilities, of said park for one and one-half years after the passage of this Act, provided further; this lease from the State of Georgia is granted expressly subject to all existing contracts, leases and agree-

ments on or relating to said property which by law must now expire at the end

of the present gubernatorial term of office ..." It is clear from the provisions of the Act above quoted that the Department
of .State Parks is entirely relieved from any responsibility, jurisdiction, or control over Jekyll Island property, except for the collection of revenue under the terms of the existing lease between the department and Mr. Barney Whitaker. Under

this view you would not have authority to enter upon the premises for the pur-

pose of physical inspection or supervision of any type of work.

While you did not specifically ask my opinion on the question of whether or not you have authority to investigate and inspect buildings destroyed by fire which are covered by insurance, for the purpose of determining terms of settle-

ment, your letter in effect raises this question. Section 91-402 of the Code provides

that the tGovernor 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. Section 91-403 of the Code provides that the Governor

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shall keep insured, at one-half their value, all of the public buildings of the State. Jekyll Island was acquired by condemnation in the name of the State of
Georgia, and the title was vested in the State. I have no factual knowledge of any transfer of this property to the State Department of Parks. Moreover, under the above cited statutory provisions, insurance on public buildings is handled by the Governor, through the Executive Department of the State, and the premiums thereon and losses sustained on said property come within the jurisdiction of the Governor, through the Executive Department. Therefore, it is my opinion that the Governor, and not the State Department of Parks, would be responsible for the delegation of an agent to inspect the property for the purpose of determining the insurance liability and to collect any sums of money due the State from losses on fire insurance, and to disburse the same according to law. I suggest that you call the Governor's attention to this matter, so that the current investigation may be expedited.
With reference to the statement in your letter that the committee appointed by the Governor in 1949 designated the Parks Department to administer the lease contract of Mr. Barney B. Whitaker, I have reviewed the Executive Order of the Governor of Georgia, dated March 1, 1949, and the amendment thereto, dated April 21, 1949, and the only provision found therein relating to the Parks Department is contained in the following language:
"(2) That the Executive Order be further amended by providing that the rentals to be paid by the successful bidder shall be paid in accordance with the terms of said Executive Order to the Director of the Parks Department of the State of Georgia."
The only authority vested in the State Department of Parks is that the Director of said department receive the rentals to be paid by the successful bidder, which was Mr. Barney B. Whitaker, of Richmond County.
In answer to the question raised as to the authority of the Jekyll Island Authority to request your representative to leave the island, I call to your attention Section 14 of the Jekyll Island State Park Authority Act (Georgia Laws 1950, page 158), which provides as follows:
"The authority is hereby empowered to exercise such of the police powers of the State as may be necessary to maintain peace and order and to enforce any and all zoning, user, and personal conduct restrictions upon the properties and facilities and the persons under its jurisdiction to the extent that such is lawful under the laws of the nation, and the State; however, the authority may delegate all or any part of performance of this function for a time or permanently to the State and/or the county in which the park is located."
FORESTRY AND GEOLOGY-Department of State Parks The Director of the Department of State Parks, with the approval of the ex-officio Commissioner of Conservation, has authority to negotiate contracts for the improvement and development of State parks.
August 2, 1950
Honorable A. N. Moye, Director Department of State Parks
OFFICIAL OPINION FACTS:
The C. L. Rhodes Company is now under contract with the State Highway Department to build a concrete spillway and the work is now under construction.

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The work consists largely of reinforced concrete and earth excavation amounting to approximately $40,000. Funds for the construction of the spillway have been supplied to the State Highway Department by the Parks Department, owner of the project. Engineering, design and construction supervision are now being furnished by the Highway Department. The work proposed to be performed is in connection with a State Park.
The contractor has offered to do certain additional work consisting of approximately 130,000 cubic yards of earth excavation, 30,000 cubic yards of clay core, and 1,500 square yards of stone rip-rap. The prices at which he has offered to do this work are satisfactory to the Parks Department and are recommended by Mr. Bennett, the engineer in charge.
QUESTION: Can the State Parks Department legally enter into an agreement with the
contractor to execute this additional work, the cost per week of which would be limited to a certain amount, for example $5,000.00? Under the proposed arrangement, the Highway Department would not be a party to such an extension of contract, but it would rather be a separate agreement between the C. L. Rhodes Company and the Parks Department. However, engineering, design and supervision would still be under the State Highway Department, and funds for this purpose would be transferred to the Highway Department by the Parks Department.
Georgia Laws 1937, pp. 264, 274; Georgia Code Supplement 43-134. "43-134. Creation.-There is hereby created and established the Division of State Parks, Historic Sites, and Monuments, as a separate division, operating under the Department of Natural Resources." Georgia Laws 1937, pp. 264, 274, Georgia Code, Supplement 43-138 provides in part as follows: "In addition to the other powers herein granted, the Division is empowered and directed: ... (d) Expenditures for park system. To make expenditures with the approval of the Commissioner of Natural Resources from available funds for the care, supervision, improvement and development of the State park system."
Georgia Laws 1943, p. 181, Georgia Code Supplement 43-101a.
"43-101a. State Division of Conservation; creation, powers and duties. Commissioner of Conservation; office created, powers and duties, compensation. There is hereby created within the Executive Department of !Georgia a division to be known as the State Division of Conservation which shall be under the control and management of the highest executive officer of the Executive Department of Georgia, by whatever name called, who shall be ex-officio Commissioner of Conservation. The Division of Conservation, hereby created, shall have all the powers and duties heretofore vested in the Department of Natural Resources except those concerning or connected with the Division of Wild Life. Such Commissioner of Conservation, hereby created, shall have all the powers and duties heretofore vested in the Commissioner of Natural Resources except those concerning or connected with the Division of Wild Life. The Commissioner of Conservation shall perform the duties of such Division without any additional salary to that he receives as highest executive officer of the Executive Department of Georgia. All powers and duties conferred by this law (Section 43-101a to 43-lla) upon the highest executive officer of the Executive Department of Georgia, by whatever name called, as ex-officio Commissioner of Conservation, shall be in addition to and cumulative of the powers and duties of such official as now provided by law or as hereafter may be provided by law."

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The Act of 1943 had the effect of abolishing the Department of Natural Resources and creating the Division of Conservation and provided that the ex-officio Commissioner of Conservation would be invested with the same powers and authority which were originally in the Commissioner of Natural Resources.
It is my opinion that the Director of the State Parks Department, with the approval of the ex-officio Commissioner of Conservation, would have authority to enter into an agreement with the contractor to execute this additional work, and that when funds are made available to the State Parks Department, the Director, with the approval of the ex-officio Commissioner of Conservation, would have the authority to spend available funds for the care, supervision, improvement and development of the State parks system. It is therefore my opinion that the Director of the Department of State Parks, with the approval of the ex-officio Commissioner of Conservation, does have authority to negotiate a contract for the excavation and for stone rip-rap, the purpose of which is for the improvement and development of a State park.
FORESTRY AND GEOLOGY-Department of State Parks Governor authorized to dispose of unserviceable state property.
Honorable Newton Moye, Director Department of State Parks
OFFICIAL OPINION FACTS:
The State of Georgia has eight small, widely separated tracts of land containing a total of 292.9 acres in Rabun, Towns and Lumpkin Counties, that are inaccessible due to their isolation in mountainous and rugged terrain which makes economic and practical use of such lands impracticable by the State for State purposes, which has been inspected by the Director and engineers of the State Department of Parks of the State of 'Georgia. They advise that such lands owned by the State are unserviceable and can not be beneficially or advantageously used by the State for State purposes and recommend that the State dispose of said lands by exchanging same for one large tract of land offered by the United States which is useable, beneficially and advantageously, by the State of Georgia for recreational and park purposes.
QUESTION: What authority is authorized to sell or dispose of unserviceable property of
the State?
ANSWER: Section 91-804 of the Code of Georgia 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 to the treasury.''
Section 91-805 of the Code of Georgia provides:
"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 Dyer et al. vs. Martin et al., 132 Ga. 445, and in the case of Trapnell vs. Candler County, 146 Ga. 617, the Supreme Court of !Georgia in construing the above quoted Code Ssections held:
"When any public property shall be unserviceable, it may be sold or other-

84
wise 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."
It is my opinion that under the above cited authorites, the Governor of Georgia is the proper authority to sell or otherwise dispose of public property of the State when the same shall become unserviceable and that he would be authorized to exchange the above stated property to the United States Government for property which is serviceable to the State in his discretion.
FORESTRY AND GEOLOGY-Georgia Forestry Commission Members of the Commission are entitled to receive any amount per diem as may be fixed by the Commission not to exceed $25.00 per day, subject to approval of the Budget Commission, for each day of actual attendance on meetings.
August 24, 1950
Honorable Guyton Deloach, Director Georgia Forestry Commission
OFFICIAL OPINION QUESTION:
Is there a statutory limitation for expenses on a per diem basis for members of the Georgia Forestry Commission?
ANSWER: Code Section 43-213 of the Temporary Supplement of 1949, provides as follows: "Immediately after appointment, taking oath of office and qualification, the
members of the Commission shall meet at the State Capitol and elect a Chairman and thereafter the Commission shall elect a Chairman annually. The members of the Commission, including the Chairman, shall receive such per diem subsistence allowances for each day of actual attendance of meetings of the Commission and mileage to and from the place of meeting and their respective home by the nearest practical route as may be authorized by the Commission. The per diem and mileage allowances received shall not exceed those authorized by law for other State commissions and/or boards. Such per diem and travel expense shall be paid from funds of the Commission. The Commission shall meet at such times at the State Capitol, or at other points, as it may determine, and it shall convene in all sessions upon call by the chairman or by a majority of the members of the Commission. (Acts 1949, pp. 1079, 1080.)"
It will be noted that members of the Forestry Commission are entitled to such per diem subsistence allowances for each day of actual attendance at meetings of the Commission as may be authorized by the Commission and that "the per diem ... shall not exceed those authorized by law for other state commissions and boards."
The per diem paid members of various commissions and/or examining boards vary from $5.00 to $25.00 per day, therefore it is my opinion that the members of the Forestry Commission are entitled to receive any amount per diem as may be fixed by the Commission not to exceed $25.00 per day subject, however, to the approval of the Budget Commission.

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GAME AND FISH--;-Game and Fish Commission 1. The Commission is not expressly empowered to confiscate power-drawn shrimp nets as contraband. 2. It is the duty of the Commission to confiscate shrimp taken in violation
of rules and regulations of the Commission. March 31, 1950
Honorable J. C. Calhoun, Director State Game and Fish Commission
OFFICIAL OPINION QUESTION:
"(1) Does the Game and Fish Commission have authority to confiscate power-drawn shrimp nets as contraband when captured in use in violation of the rules and regulations of this commission?
"(2) Does the Game and Fish Commission have authority to confiscate shrimp which were taken in violation of the rules and regulations of the commission?" ANSWER:
In answer to your first question, I am unable to say that the law expressly directs or makes it the duty or confers such power and authority upon the State Game and Fish Commission.
In answer to your second question, it is my opinion that the law expressly makes it the duty of the Game and Fish Commission to confiscate shrimp which were taken in violation of the rules and regulations of the Commission.
Code Section 45-108 of the 1933 Code not only confers such power and authority upon the 1Game and Fish Commission, but goes further and makes it the duty of the State Game and Fish Commissioner to seize or cause to be seized, game birds or other birds, animals and fish caught or killed at any time in any manner, or which may be shipped contrary to the provisions of this law. This section goes further and directs what disposition should be made of the game or fish seized under this section. The constitutionality of this section was upheld in the case of Creaser, supervisor, et al. v.,Durant et al, 197 Ga. 531.

GAME AND FISH-Game and Fish Commission

Game and Fish officers may search trucks for unpaid shrimp tax in the following cases: 1. When they are acting under a proper warrant. 2. When they have probable cause to believe that a violation of the law is being committed. 3. In conjunction with the arrest made of an offender detected in the commission of a violation of the law.
.July 24, 1950 Hon. J. C. Calhoun, Director State Game and Fish Commission

QUESTION:

OFFICIAL OPINION

Do our Coastal patrolmen or any other of our law enforcement agents have authority under the law to stop trucks for the purpose of checking for the collection of shrimp tax?" ANSWER:
The Constitution of the State of Georgia, Article 1, Paragraph 16 (Code Section 2-116) provides as follows:

86
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath, or affirmation, particularly describing the place, or places, to be searched, and the persons or things to be seized."
This section has long been construed to prohibit unreasonable searches without proper Warrant.
Code Section 54-108 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 Game and Fish Commission and Director by Code Section 45-148 Supplement. Therefore, your officials have the authority to execute proper warrants directing the stopping and searching of trucks and other vehicles. Obviously they will seldom be able to procure warrants for persons whom they suspect of violating laws and regulations. Volume 47, Am. ur. 513, Section 18, provides as follows: "Searches of Vehicles and other means of Transportation.-The guaranty 1>f 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 secure 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 illegally 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. Where 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 stop and search trucks and automobiles without warrants when they have probable cause for suspecting that violations of the law Or of rules and regulations of your department which have properly been adopted and promulgated are being violated. No concise definition of probable cause can be given. Each case must be separately determined on its facts. See Turner vs. Camp, 123 F 2d 840.
Section 45-812 of the Code of Georgia Supplement provides the amount of 'tax which distributors and dealers of oysters and shrimp must pay. It further provides the penalty for the violation of this statute. An Act of the legislature passed in 1950 (Ga. Laws 1950, Page 389) which was approved February 17, 1950, provides that it is unlawful for any person to take or catch shrimp and transport the same beyond the limits of this State without first having the same weighed and paying the tax thereon provided by law, and provides for the penalty for the violation of this section of the law.
When your officers apprehend a fugitive or any person actually in the commission of a violation of the laws or the 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.

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It is therefore my opinion that your officers have the authority under the law to stop and search trucks for the purpose of ascertaining whether they are in possession of shrimp on which there is unpaid tax due under the law in the following cases:
1. When they are acting under a proper warrant. 2. When they have probable cause to believe that a violation of the law is being committed. 3. In conjunction with the arrest made of an offender detected in the commission of a violation of the law. Of course, as pointed out in this opinion, when your officers stop a truck for the purpose of searching for un-taxpaid shrimp as set out in No. 2 of this opinion, the officer so acting must have a good cause of suspicion based upon some information or reasonable cause to come under the definition of probable cause.
GAME AND FISH-Game and Fish Commission (Unofficial) 1. The State of Georgia has control of the outside waters of the coastline to the limit of the three-mile jurisdiction. 2. The State Game and Fish Commission has authority to adopt and promulgate rules and regulations to control these waters.
July 24, 1950 Mr. Fred D. Beasley
I have your letter of July 12, in which you request my opinion on the following two questions:
1. Are the outside waters on the coast of the State of Georgia controlled by the State or by the Federal government?
2. Does the State Game and Fish Commission have authority over the outside as well as the inside?
With reference to Question 1, I would like to refer you to Section 45-512 of the Annotated Code of iGeorgia, which 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, salt-water rivers and creeks. Any person violating any of the provisions of this section shall be guilty of a misdemeanor. (Acts 1924, p. 116.)"
You will see from this Section of the Code that the State of Georgia has control of the outside waters of the coast line to the limit of the three-mile jurisdiction.
With reference to Question 2, I wish to call your attention to Section 45-146 of the Annotated Code of Georgia, Supplement, which is as follows:
"45-146. Power to fix bag limits and open and closed seasons and to adopt regulations relating to game and fish.-The Commission shall have power to fix

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bag limits and to fix open and closed seasons, on a State-wide, regional or local basis, as they may find to be appropriate, and to regulate the manner and method of taking, transporting, storing and using birds, game, fur-bearing animals, fish, shellfish, crustaceans, reptiles and amphibians, by rules and regulations: Provided, that the Commission shall post at the courthouse door of the county or counties that will be affected a complete copy of such rule or regulation certified by the chairman of the Commission and also file an additional certified copy thereof in the office of the ordinary of the county or counties affected, at least 30 days before the effective date of such rule, or regulation. (Acts 1943, pp. 128, 132; 1945, pp. 404, 408.)"
It is my opinion that based upon the authority contained in the above quoted Section of the law that the State Game and Fish Commission does have authority to adopt and promulgate rules and regulations to regulate or close the outside waters up to the three-mile limit, and that this authority would include the right to close the outside waters within the three-mile jurisdiction during any period in the year or for all the year.
GAME AND FISH-Hunting (Unofficial) Any person hunting on the lands of another which has been posted on two or more places forbidding such hunting shall be guilty of a misdemeanor.
November 14, 1950 Honorable J. J. Van Liempd
This will acknowledge receipt of your letter of November 8, 1950, with reference to Code Section 45-401 of the Annotated Code of Georgia 1933, referring to persons hunting with dogs and firearms on lands of others, which are enclosed or unenclosed, where said lands have been legeally posted against hunting.
Code Section 45-401 of the Annotated Code of :Georgia, reads as follows: "Any person who shall hunt with dogs, firearms, or in any other way on any lands, enclosed or unenclosed, of another, of fish with hook, seine, nets, or in any other way in any stream, lakes, ponds or lagoons of another, after being forbidden so to do or when ordered to desist therefrom by the owner thereof or by the person having the same in charge or his agent, shall be guilty of a misdemeanor. It shall be the duty of the landowners to post a notice in two or more places on each tract of land, forbidding all persons to hunt thereon or fish in the streams, ponds, lakes, .or lagoons belonging to said landowners." Under this Code Section where a person hunting on lands on which the owner has posted notices in two or more places on each tract of land forbidding all persons to hunt thereon or fish in the streams, ponds, lakes, or lagoons belonging to said landowner, shall be guilty of a misdemeanor.
GAME AND FISH-Lakes Lakes do not have to be connected to some stream which goes dry in some season in order to be classified as private lakes.
February 1, 1950 Honorable J. C. Calhoun, Director Game and Fish Commission
OFFICIAL OPINION Reference is made to the attached rough drawing. The solid lines thereon

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are lake borders; the dotted lines are property borders. You will notice that the three lakes, Trout, Round and White Bluff, are entirely on the property of Mr. J. V. Tippin, Jr. except a tiny portion in the southeast corner which is on the property of Mr. Durrence. The Altamaha River is the south border of the Tippin property, the lakes and the Durrence property.
QUESTION:
Are the three lakes, Trout, Round and White Bluff, with the exception, of course, of the small corner in the southeast which is included in the Durrence property, private lakes-the private property of J. B. Tippin, Jr. 7
ANSWER:
In the case of Purvis, et al, Game and Fish Protectors, vs. Tippins, 193 Ga. 251, the Supreme Court of Georgia held that Trout Lake and Round Lake, two of the lakes mentioned in your request, were privately owned ponds within the definition of the 1937 Act, (Ga. Laws 1937, page 675). The Supreme Court in this case held:
"It could not properly be said that the legislature intended to provide that there could be no private pond unless it is located on some stream of this State which at some season of the year goes dry. To give such a construction would manifestly impute to the legislature the purpose of declaring that any sort of pond or puddle, however small, could not constitute a private pond unless connected with a stream of water which goes dry at some season of the year. The clear and manifest intent and purpose of the legislature in providing the definition in the act of 1937 was to declare that ponds continually connected with the running streams of the State could not be accounted private, for the reason that persons other than the owners of the ponds would have an interest in the fish because of such an outlet, affecting the rights of the general public. The legislature saw fit, however, to provide that such an outlet to a pond would not be sufficient to impress a pond with the quality of public interest, unless the stream remained running throughout the entire period of the year."
"Under the agreed statement of facts, and the definition of a 'private pond' as set forth either by the act of 1925 (Ga. L. 1925, p. 302 et seq.) or by the act of 1937 (Ga. L. 1937, p. 675 et seq.), each of the privately owned ponds was a 'private pond' within the meaning of either or both definitions; and consequently the owner of the premises on which the ponds were located was entitled to the order restraining the officers of the State Game and Fish Department from destroying the trap which the owner had set between the private ponds on his own property."
Therefore, the questions propounded by you in regard to these two lakes have been definitely settled by the Supreme Court in this case.
From the sketch attached to your letter showing the location and shape of the three lakes in question, which appear to be in close proximity with each other and of approximately the same size and surrounded by the one ownership, it appears that there would be no distinction between either of the three lakes in question. Therefore, I reach the conclusion that White Bluff Lake falls within the same class as the other two lakes above mentioned in the case of Purvis et al., Game and Fish Protectors vs. Tippins, which held said lakes to be a private pond within the meaning of the Act approved March 30, 1937, (Ga. Laws 1937, page 675).

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GAME AND FISH-Licensing of commercial fishing boats A resident of Georgia is entitled to a resident license for his commercial fishing boat no matter where such boat is kept.

Honorable J. C. Calhoun, Director State Game and Fish Commission

August 22, 1950

OFFICIAL OPINION FACTS:
A resident of Georgia has registered his commercial fishing boat in Florida. The boat is operated full time within Georgia waters.

QUESTION: Should a resident or a non-resident license be secured for said boat?

ANSWER:
Section 45-209 of the Code of Georgia of 1933 reads as follows:
"No boat shall engage in commercial fishing in this State without being provided with a license; and no individual fisherman shall be taken upon such boat unless such fisherman shall be duly licensed."
Section 45-210 Of the Supplement to the Annotated Code of Georgia reads as follows:
"Amounts-Boats under 16 feet long and under four feet beam, one dollar and five cents; boats over 16 feet long and over four feet beam, 20 cents for each additional foot or fraction thereof of length and beam. An additional license tax of $25 shall be required of all aliens or nonresidents of the State of Georgia on all boats, vessels, schooners or launches engaged in fishing or having to do with fishing in this State, owned in whole or in part by such aliens or nonresidents in addition to the boat license tax required in this section: Provided, that the license issued hereunder shall be dated January 1 of this year issued and shall expire on December 31 of the year issued."
Section 45-211 of the Code of Georgia of 1933 reads as follows:
"All boats engaged in taking fish, oysters, shrimp, or other seafood for the purpose of sale from any of the waters of this State, shall, before beginning operation, secure from the Commissioner of IGame and Fish a license, and for this purpose the owner of the vessel shall present in writing an application setting forth the name and description of said vessel, the name and post-office address of the owner and the captain of said vessel, the number of the crew, and such other data or information as the said Commissioner shall deem necessary. Said application shall be made on blanks prescribed by the Commissioner and shall be made under oath and duly witnessed by the officer authorized by law to administer oaths; thereupon said Commissioner shall register said vessel and issue license upon payment of cost thereof. The schedule of license fees for boats shall be the same as provided in section 45-210."
It is evident from a reading of the above quoted Code Sections that the residence of the person is the controlling factor in determining whether a resident or non-resident license shall be issued for a commercial fishing boat. A person who is a resident of this State is entitled to a resident license for his commercial fishing boat regardless of where such boat is kept.

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GAME AND FISH-Wild Life Rangers Wildlife Rangers are peace officers having the power to arrest.

Honorable J. C. Calhoun, Director State Game and Fish Commission

February 14, 1950

OFFICIAL OPINION QUESTION:
1. Does the passage of a resolution give our wildlife rangers full arresting powers, even to the serving of warrants, if it should become necessary?
2. Would this make our wildlife rangers eligible for peace officer pensions, in accordance with the law passed by the present Legislature?
ANSWER: Section 45-108 of the 1933 Code of Georgia provides as follows: "It shall be the duty of the Commissioner of Game and Fish to seize or cause
to be seized, game birds or other birds, animals, and fish caught or killed at any time in any manner, or which have been shipped, contrary to the provisions of this law. .Such game or fish so seized shall be donated to some charitable institution in this State, except live birds, animals, or fish, which shall be liberated. He shall with the State game protectors and deputy State ga:me protectors be authorized to serve all criminal processes for violations of this law which could be served by the sheriff's and constables." (Emphasis supplied.)
Section 45-126 provides as follows: "It shall be the duty of the State game protectors and deputy game protectors to enforce all the laws of this State in reference to game and fish, and to perform such other duties as may be required of them by the Commissioner of Game and Fish, except as to the sale of hunting and fishing licenses and other licenses sold by the Game and Fish Department. All such State game protectors shall give bond in the sum of $1,000 in some solvent surety company, payable to the Commissioner of 'Game and Fish, and conditioned uvon the faithful performance of their duties, the premiums on such bonds to be paid by said game protectors." (Emphasis supplied.) Section 45-143 provides as follows: "The Commission 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 shall serve at the pleasure of the Commission. The Commission 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." On October 26, 1933 an opinion was given to Honorable Peter Twitty, Commissioner of the Department of Game and Fish by Attorney General M. J. Yeomans as follows: "Yours of the 24th instant has been received. "You desire an opinion upon whether a State Game Warden or a deputy State Game Warden, acting under the authority of the Act of 1931 as contained in Georgia Laws, 1931, page 174, has the power and authority to make a physical arrest of any person or persons violating any of the provisions of the Game and Fish Laws of this State. "In your letter you show that you are familiar with Section 25 of the Act approved August 8, 1924, as contained in 'Georgia Laws, 1924, page 112, and also

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with the prov1swns of the laws of 1931, page 174. It is my opinion, based upon these provisions of our law, that a State Game Warden or a Deputy Game Warden may make a physical arrest of any person or persons violating any of the provisions of the Game and Fish laws of this State. However, unless such officer actually saw the crime committed or the same was done within his presence, then it would be necessary for him to have a warrant in order to make a legal arrest.
"Section 917 of the Penal Code (Section 27-207, Code of 1933) of our State provides as follows:
'An arrest may be made for a crime by an officer either on a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue warrant.'
"Thus, you can see from this section what the necessary qualifications or restrictions are for an arrest without a warrant.''
On June 28, 1934, an opinion W<tS given to Honorable Zack D. Cravey, Commissioner of Game and Fish, as follows:
"I have your letter of June 27th requesting my opinion as to whether or not a State Game Warden or Deputy Warden appointed by the Commissioner of Game and Fish may lawfully carry firearms.
"Of course, there is no restriction in the law on the carrying of any sort of firearms except pistols. Any person can carry a pistol provided he does not conceal it and provided he first obtains a license from the Ordinary. Under the Act of 1910 no person is authorized to carry a pistol concealed.
"The Act of 1910 (Michie's Penal Code, 348, [1]) made it unlawful for any person to carry a pistol outside of his own home or place of business without first obtaining a license from the Ordinary, and it expressly provides that it shall not apply to sheriffs, deputy sheriffs, marshals, or other arresting officers of this State or the United States, who are now allowed by law to carry revolvers.
"The Game and Fish Act expressly provides that the Game and Fish Commissioner, wardens, deputy wardens, shall be authorized to serve all criminal processes for sheriffs of the game and fish laws which could be served by the sheriffs and constables of this State.
"Under date of October 22nd, 1933, this Department rendered an opinion to Mr. Twitty to the effect that under the circumstances therein stated the Game Warden or Deputy Game Warden could make an arrest for violations of the Game and Fish laws.
"Although provision has been made for these Game Wardens and Deputy Game Wardens since the passage of the Act of 1910, I am of the opinion that since they are expressly authorized to serve criminal process they come within the provisions of the Act of 1910 which authorizes arresting officers to carry revolvers without obtaining licenses. I am therefore of the opinion that a State Game Warden or Deputy Game Warden may legally carry a pistol without a license, provided he does not carry it concealed." (Emphasis supplied.)
In answer to your first question, it is my opinion that a Wild Life Ranger duly appointed under the provisions of the attached order and rule as a State Game Protector or Deputy State Game Protector of the State Game and Fish Commission would be vested with arresting and other powers specifically pointed out in the above two opinions.
House Bill No. 273, approved February 1, 1950 and known as the "Peace Officers Retirement Bill," provides in Section 8 as follows:

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"The term 'Peace Officer,' as used in this Act, shall mean all peace officers who are employed by the State of Georgia, or any subdivision, or municipality thereof, who are required by the term of their employment, whether by election or appointment, to give their full time to the preservation of public order, or the protection of life and property, or the detection of crime in the State of Georgia, or any political subdivision or municipality thereof, and shall include all convict guards and wardens of county or state camps, shall be entitled to all the benefits, privileges and responsibilities provided under this Act."
In answer to the second question of your request, it is my opinion that a State Game Protector or Deputy State Game Protector would come within the classification of a 'Peace Officer' as defined in House Bill No. 273.
GENERAL ASSEMBLY-Delegation of Power (Unofficial) The legislature has no power to delegate to a board, or bureau, or other administrative body, authority to make rules or regulations which are essentially legislative in character.
May 17, 1950 Honorable A. L. McCawley
I am pleased to acknowledge your letter of May 3, 1950 relative to the delegation of legislative powers.
Article III, Section I, Paragraph I of the 1945 Constitution of Georgia provides as follows:
"The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives."
On the question of the delegation of legislative power, I cite the following decisions of the Appellate Courts of this State: The Supreme Court of Georgia in the case of Moseley v. Garrett, 182 Ga. 810, at page 816, held:
"The constitution vests the legislative power of the State in the General Assembly (Code, 2-1201), which is empowered to 'make all laws and ordinances consistent with this constitution, and not repugnant to the constitution of the United States, which they shall deem necessary and proper for the welfare of the State.' 2-1822. While the General Assembly may enact general laws relating to subject-matters within its jurisdiction, and authorize administrative officers or bodies, in the course of administering such statutes, to perform functions quasi-legislative in character (Abbott v. Commissioners, 160 Ga. 657, 664, 129 S. E. 38), those functions which are essentially legislative must be performed by the legislative body, and may not be delegated to executive or ministerial officers. Southern Ry. Co. v. Melton, 133 Ga. 277 (65 S. E. 665); Zuber v. Southern Ry. Co., 9 Ga. App. 539 (71 S. E. 937).''
The Court of Appeals in the case of Southern Co-Operative Foundry Company v. Drummond, 76 Ga. App 222, at page 224, held:
"The legislative power of the State is vested exclusively in the General Assembly. Code (Ann. Supp.) 2-1301. The legislature has no power to delegate to a board or bureau or other administrative body authority to make rules or regulations which are essentially legislative in character."

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HOUSING AUTHORITIES-Definition A municipality incorporated as a "Town" is not within the meaning of "City" as defined in an Act approved March 30, 1937, known as the "Housing Authority Law."
May 4, 1950
Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUESTION:
"Does the Act referred to as the 'Housing Authority Law,' approved March 30th, 1937, as amended, which creates a 'Housing Authority' in each City of the State of Georgia, include a municipality in this State incorporated as a 'Town' and create a 'Housing Authority in Towns'?"
ANSWER: Section 99-1104 of the 1933 Annotated Code, pocket supplement, provides:
"In each city (as herein defined) and in each county of the State there is hereby created a public body corporate and politic to be known as the 'housing authority' of the city or county: Provided, however, that such authority shall not transact any business or exercise its powers hereunder until or unless the governing body of the city or county, as the case may be, by proper resolution shall declare at any time hereafter that there is need for an authority to function in such city or county. The determination as to whether there is such need for an authority to function (a) may be made by the governing body on its own motion or (b) shall be made by the governing body upon the filing of a petition signed by 25 resident of the city or county, as the case may be, asserting that there is need for an authority to function in such city or county and requesting that the governing body so declare."
Section 99-1103 of the 1933 Annotated Code, pocket supplement, provides in part:
"(b) 'City' shall mean any city in the State. 'County' shall mean any county in the State. ' The city' shall inean the particular city for which a particular housing authority is created. 'The County' shall mean the particular county for which a particular housing authority is created.
* * *
"(f) 'Area of operation' in the case of a housing authority of a city, shall include such city and the area within 10 miles of the territorial boundaries thereof, but shall not include any area which lies within the territorial boundaries of any other city."
The caption of the original Act of 1937 (Georgia Laws 1937, pages 210-230) specified that the purpose was to "create such housing authorities in cities having a population of more than 5,000 inhabitants and in counties." This Act was amended in 1943 (Georgia Laws 1943, page 147) by striking the words, "having population of more than 5,000 inhabitants," and by inserting in lieu thereof the words, "in the State," so that Subsection (b) of Section 2 of the 1937 Act, as amended, would read as follows:
"(b) 'City' shall mean any city in the State. 'County' shall mean any county in the State. 'The City' shall mean the particular city for which a particular housing authority is created. 'The County' shall mean the particular county for which a particular housing authority is created."
It is my opinion that it was the intent of the 'General Assembly under the

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above cited authorities to create a public body corporate and politic to be known as the "housing authority" in each city, as defined in said Act, and in each county of the State.
In the case of Savannah Railway Company v. Jordan, 113 Ga. 687, the Supreme Court of Georgia held:
"It is clearly settled, by the decisions just referred to, that a place distinctly incorporated as a town does not become a city by reason of the fact that the General Assembly, in an act in relation to the affairs of such town, refers to it as a city. In order to create a city in the first instance it is necessary for the General Assembly to expressly declare its intention that a given place shall be so designated and recognized. In order to change a town into a city a similar express legislative declaration is essential. And where a place has been distinctly incorporated as a town, the character of the municipal corporation thus created continues unchanged until there has been a legislative declaration which not only in effect says that the place shall no longer be designated as a town but expressly declares that it shall be classed as one of the cities of the State."
It is my further opinion, in view of the above holding of the Supreme Court of Georgia, that a municipality incorporated as a "town" would not come within the definition of a "city," as defined in the Housing Authorities Act of 1937, as amended.
Your attention, however, is called to Section 99-1153 of the 1933 Annotated Code, which authorizes the creation of a consolidated housing authority for municipalities, in which the term "municipality" is specifically defined to mean any city, town, village, or other municipality in the State. The provisions of this section, codified from the Acts of 1943, pages 146-155, do not in any way apply to the creation of a single housing authority referred to under the 1937 Act above cited.
HOUSING AUTHORITIES-Interpretations 1. A Commissioner or employee of a Housing Authority is prohibited from having any interest, direct or indirect, in any contract for materials or services to be furnished in connection with any housing project. He may sell the authority real property, under certain conditions. 2. City Housing Authorities, County Housing Authorities and Regional Housing Authorities operating within the county have concurrent jurisdiction in the area within ten miles of the territorial boundaries of a city. 3. It is not necessary for a City Housing Authority undertaking the construction of a housing project in another municipality, other than a city, not included in the area of its operation, to obtain a resolution of approval thereof from a county or regional housing authority, whose area embraces said munic1pality, unless said county or regional housing authority has outstanding, or is under contract to issue, indebtedness for a housing project within said municipality.
November 10, 1950 Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUESTIONS:
(1) In view of Section 6 of the Housing Authorities Law of Georgia (Georgia Code Section 99-1113), to what extent, if any, may a Commissioner or employee of a Housing Authority deal directly or indirectly with the Housing Authority

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in matters in which such Commissioner or employee has a personal interest? (2) (a) In "the area within ten miles of the territorial boundaries" of a
City wherein a City Housing Authority has been activated, do the City Housing Authority and a County Housing Authority or a Regional Housing Authority operating within the County in which such City is located have concurrent jurisdiction in said ten mile area?
(b) If the area of operation of the respective Housing Authorities is concurrent, does the Housing Authority undertaking a housing project in said ten mile area need obtain any approvals therefor from the other Authority operating therein?
(3) Under Section 4G of the Housing Authorities Law of Georgia (Georgia Code Section 99-1154) is it necessary for a City Housing Authority undertaking the construction of a housing project in another municipality, other than a city, not included in the area of operation of such City Housing Authority to obtain a resolution of approval thereof from a County or Regional Housing Authority whose area of operation embraces said municipality, other than a city?
ANSWERS:
In answer to the first question propounded, Section 99-1113 of the Georgia Code of 1933 Annotated reads: "No commissioner or employee of an authority shall acquire any interest direct or indirect in any housing project or in any property included or planned to be included in any project, nor shall he have any interest direct or indirect in any contract or proposed contract for materials or sevices to be furnished or used in connection with any housing project. If any commissioner or employee of an authority owns or controls :;tn interest direct or indirect in any property included or planned to be included in any housing project, he immediately shall disclose the same in writing to the authority, and such disclosure shall be entered upon the minutes of the authority. Failure so to disclose such interest shall constitute misconduct in office. (Acts 1937, pp. 210, 218."
In my opinion, the word "property'' as used in the first part of this Code section is intended to refer to real property. This is particularly indicated by the distinction made between the word "property" and "materials or services" referred to in the second part of this Code section. The particular purpose of this part of the Code section is to prohibit a Commissioner or employee of an Authority from acquiring an interest in land being considered for a project site in order to speculate for a profit in dealing with the Authority for the purchase of such land.
The second part of this Code section is a direct prohibition against a Commissioner or employee of an Authority having "any interest, direct or indirect, in any contract or proposed contract for materials or services to be furnished or used in connection with any housing project." Under this provision, no Commissioner or employee of an Authority could sell any materials or services "to be furnished or used in connection with any housing project."
T'he third part of the Code section, in my opinion, applies only to the first part thereof, since the phrase "property included or planned to be included in any housing project" is again used to distinguish it from the phrase "materials or services to be furnished in connection with any housing project," and I again believe that the word "property" is intended to mean real property. It is my opinion that the purpose of this part of the Code section is to require a disclosure to the Authority of any interest of a Commissioner or employee in any real property considered for the site of a project, in order that the Authority may determine if such interest was acquired by the Commissioner or employee in violation of the prohibition contained in the first part of this Code section. While it does not

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state that he may, the inference is reasonable that if the Authority finds that such interest was not acquired by a Commissioner or employee in violation of the first part of this Code section, but was acquired without foreknowledge of any plan to include such property in any project, or scheme to speculate for a profit in the sale of such property to the Authority, then the Authority may proceed to deal with a Commissioner or employee for the purchase of such property.
It follows, of course, that any contract by an Authority that violates the provisions of this Code section will be illegal and unenforceable.
2. The Housing Authorities Law of Georgia, as originally enacted, created Housing Authorities only in cities as distinguished from towns or other bodies politic, and defined the area of each Housing Authority to "include such city and the area within 10 miles of the territorial boundaries thereof, but shall not include any area which lies within the territorial boundaries of any other city." (Section 99-1103 [f] of the Ga. Code Ann.) Subsequently, the Housing Authority Law was amended to provide for County and Regional Authorities, and their area of operation is as follows: "The area of operation of a housing authority created for a county shall include all of the county for which it is created, and the area of operation of a regional housing authority shall include all of the counties for which such regional housing authority is created and established: Provided that a county or regional housing authority shall not undertake any housing project or projects within the boundaries of any city unless a resolution shall have been adopted by the governing body of such city (also by any housing authority which shall have been theretofore established and authorized to exercise its powers in such city) declaring that there is a need for the county or regional housing authority to exercise its powers within such city. (Acts 1943, pp. 146, 152. Ga. Code Ann. Sec. 99-1146)."
(a) It is my opinion that a city wherein a city housing authority has been activated and a county housing authority or a regional housing authority operating within the county, in which such city is located, would have concurrent jurisdiction in said ten mile area.
(b) The housing authority undertaking a housing project in said ten mile area need not obtain any approvals therefor from the other authority operating therein.
3. Section 99-1154 Ga. Code of 1933 Annotated contains this language: "In addition to its powers, a housing authority created for a city may exercise any or all of its powers within the territorial boundaries of any other MUNICIPALITY (emphasis mine) not included in the area of operation of such housing authority, for the purpose of planning, undertaking, financing, constructing and operating a housing project or projects within such municipality: Provided that a resolution shall have been adopted (a) by the governing body of such municipality in which the authority is to exercise its powers and (b) by any housing authority theretofore established by such municipality and authorized to exercise its powers therein declaring that there is a need for the housing authority of the aforesaid city to exercise its powers within such municipality.... During the time that, pursuant to these findings, a housing authority has outstanding (or is under contract to issue) any evidence of indebtedness for a project within the city or other municipality, no other housing authority may undertake a project within such municipality without the consent of said housing authority which has such outstanding indebtedness or obligation. A municipality shall have the same powers to furnish financial and other assistance to a housing authority exercising its powers within such municipality under this section as though the municipality were within the area of operation of such authority." It appears from the pro-

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visions of this section that a housing authority undertaking the construction of a housing project in another municipality, other than a city, not included in the area of operation of such city housing authority, would not be required to obtain a resolution of approval thereof from a county or regional housing authority whose area of operation embraces said municipality, other than a city, unless said county or regional housing authority, has outstanding, or is under contract to issue, any evidence of indebtedness for a housing project within said municipality.
HOUSING AUTHORITIES-Loyalty Oath (Unofficial) Employees of the Housing Authority of the City of Cornelia are not required to subscribe to the Loyalty Oath.
November 7, 1950 Honorable Herbert B. Kimzey
I am in receipt of your letter of August 30, 1950 in which you ask if employees of the Housing Authority of the City of Cornelia are required to subscribe to the Loyalty Oath.
Section I of an Act approved February 23, 1949 (Georgia Laws 1949, page 960) reads as follows:
"Be it enacted by the General Assembly of the State of Georgia and it is hereby enacted by authority of the same that from and after the passage of this Act all persons who are employed by and are on the pay roll of and the recipient of wages per diem and/or salary of the State of Georgia, or its departments and agencies, all counties and cities, school districts and local educational systems throughout the entire State, are hereby required to take an oath that they will support the Constitution of the United States and the Constitution of the State of Georgia."
Section V of the same Act provides: "Be it further enacted by the aforesaid authority that the loyalty oath required by the provisions of this law shall apply to all elected officers of this State, including the Governor and constitutional officers as well as elected officials of any political subdivision of the government of Georgia, including local school board officials." Thus it is necessary to examine the provisions of the Housing Authority Act and see if the employees of a city housing authority come within the provisions of either of the above sections. Section 8 of the Housing Authorities Law, approved March 30, 1937 (!Georgia Laws 1937, pages 210-230), provides in part as follows: "An authority shall constitute a public body corporate and politic, exercising public and essential governmental functions, and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this Act. . . ." Hence, it appears that although a city housing authority is an instrumentality of the State, it is not an agency, board, or department of the State, and, therefore, employees of the Housing Authority of the City of Cornelia are not required to sign the Loyalty Oath.

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HOUSING AUTHORITIES-Regional Housing Authority Counties embraced in a Regional Housing Authority cannot withdraw from that Authority or establish a County Authority while being in the area of operation of a Regional Authority.
September 19, 1950
Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUESTION:
1. Can a County of this State, now embraced in a Regional Housing Authority, under the Georgia Housing Act, as amended, withdraw from the Regional Housing Authority?
2. Can a County now embraced in a Regional Housing Authority activate a separate County Housing Authority while still a part of the Regional Authority?
ANSWER: Both questions are answered in the negative.
REASON: Regional Housing Authorities are authorized by amendment, (Ga. Laws 1943,
Page 146) to the Housing Authorities Law of 1937, (Ga. Laws 1937, page 210) and the purpose, intent and effect of this amendment can only he arrived at by the study of the Housing Authorities Law as a whole.
The amendment of 1943 provides that a Regional Housing Authority shall come into being, "After the governing bodies of each of two or more contiguous counties by resolution declare that there is a need for such an authority," Georgia Code Annotated, Section 99-1143, and this resolution is effective only after public hearings have been held to determine if there exists a need for public housing, Georgia Code Annotated, Section 99-1144. This amendment further provides that any County Housing Authority embraced within the area of the Regional Authority shall cease to exist upon the establishment of the Regional Housing Authority, except for the purpose of "winding up its affairs and executing a deed."
It is further provided that creditors of the County Housing Authority must in writing consent to such a transfer and that in addition, the Commissioners of the County Authority must also consent to the transfer, Georgia Code Annotated, Section 99-1141.
It is my opinion that the Legislature having not provided any machinery for executing the withdrawal of a County Authority from a Regional Authority, none was intended. Further, it is my opinion that, even if the Legislature provides the necessary machinery, the withdrawal of a County from a Regional Authority while bonds or other debts are outstanding would effect such an impairment of contractual relationships as ts inhibited by the Federal and State Constitutions. It may well be reasoned that even if all debts and obligations are paid the citizens of each County have certain rights and equities in the Regional Authority as a body politic, it having been created upon public demand for the benefit of the citizens of the contiguous Counties embracing the area of the Regional Housing Authority.
With regard to the second question propounded, it seems abundantly clear from the language of the amendment, Georgia Code Annotated, Section 99-1141, that any County Authority within the area of operation of a Regional Authority, Georgia Code Annotated, Section 99-1146, must cease to operate upon the establishment of the Regional Authority. For the reasons set out above, it is my

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opinion that the Legislature intended that Regional Authorities supersede and replace any County Authorities within the area of operation of the Regional Authority.
HOUSING AUTHORITIES-State Housing Authority A member of a governing body of a city is not prohibited from serving as commissioner on a County Housing Authority Board.
Hon. J. M. Forrester Supervisor and Coordinator State Housing Authority
OFFICIAL OPINION QUESTION:
Is it permissible for a member of a governing body of a particular city to serve as a commissioner on a County Housing Authority Board? ANSWER:
Ga. Code Ann. Supp. Sec. 99-1110 provides in part as follows: " ... No commissioner of an authority may be an officer or employee of the city or county for which the authority is created ..." This appears to be the only section in regard to qualification or disqualification of a member of a County Housing Authority Board. Thus, it seems that a member of a governing body of a city for which a Housing Authority is created would be prohibited by this Section from serving as a member of such authority; however, he would not be ineligible to serve as a member of a County Housing Authority. See also Ga. Code Ann. Supp. Sec. 99-1146, which reads in part as follows: "The area of operation of a housing authority created for a county shall include all of the county for which it is created ... Provided that a county or regional housing authority shall not undertake any housing project or projects within the boundaries of any city unless a resolution shall have been adopted by the governing body of such city (and also by any housing authority which shall have been theretofore established and authorized to exercise its powers in such city) declaring that there is a need for the county or regional housing authority to exercise its powers within such city."
HOUSING AUTHORITIES-State Housing Authority Board The Board may spend money appropriated to the Treasury Department for cost of operating Housing Act.
February 28, 1950
Honorable Herman E. Talmadge Governor, State of Georgia
OFFICIAL OPINION QUESTION:
Does the State Housing Authority Board have the power to spend money appropriated for the cost of operating the Housing Act? ANSWER:
Section 47 of the General Appropriations Act of 1949 reads as follows: "Section 47. Treasury, State. For cost of operating the State Treasury ... $50,000.00. Provided that from this item an amount not in excess of $20,000.00 may be expended to meet the cost of operating the Housing Act."

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You will note that $20,000.00 is appropriated to meet the cost of operating the Housing Act. I presume that this money was appropriated under the section dealing with the State Treasury because until the 1949 Session of the General Assembly, the State Treasurer was the State Director of Housing.
Article VII, Section IX, Paragraph II of the Constitution (Code Section 2-6202) reads as follows:
"Each General Appropriations Act, with such amendments as are adopted from time to time, shall continue in force and effect 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 Federal Grants and other continuing appropriations and adjustments on appropriations shall remain in force and effect until specifically and separately repealed by the General Assembly."
Section 53 of the General Appropriations Act of 1949 reads as follows: "All appropriations and expenditures authorized by this Act shall be subject to provisions of Article VII, Section IX, Paragraph II of the Constitution of Georgia, which continues in force and effect Sections 55, 57, 58, 59, 60, 62, and 63 of Appropriation Act, approved January 29, 1943, same being laws of general application to all appropriations made by the General Assembly." Section 57 of the General Appropriations Act of 1943 reads as follows: "In the event any duties, purposes, and objects for which appropriations are made in this Act, shall be transferred under authority of law to a State Agency other than that to which appropriated, the appropriations for such duties, purposes and objects shall follow to such State Agency to which the duties are transferred; and in case the appropriation to be so transferred is not a separate item, the Governor, the State Auditor, and the head of the State Agency to which the appropriation is made in this Act, are authorized to determine the amount to be transferred and set up to the transferee State Agency. Nothing in this Section shall be construed to increase any appropriation for the duties, purposes and objects named in this Act." This section is still in effect by virtue of the Constitutional provision and the Section of the 1949 Act quoted above. I am of the opinion that this section contains the answer to your question and that the State Housing Authority Board has the authority to legally spend money appropriated by the General Appropriations Act of 1949 for the purpose of meeting the cost of operating the Housing Act.

INSURANCE-Commissioner 1. An unincorporated reciprocal insurance association may be organized and licensed in Georgia. 2. The insurance commissioner has the authority to make rules and regulations for the governing of such companies in the absence of a statute.

April 12, 1950

Honorable Zack D. Cravey Insurance Commissioner

OFFICIAL OPINION

QUESTIONS: 1. Can an unincorporated reciprocal insurance association, sometimes re-

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ferred to as an insurance exchange, be organized and licensed to operate in this State?
2. Does the insurance commissioner have authority to provide rules and regu-
lations for the operation of such company in the absence of 'a special statute?
ANSWER: I understand that a reciprocal insurance association is ordinarly composed
of persons in the same or related businesses who, .for mutual advantages, desire to insure each other.
There is no statute in this State expressly permitting or forbidding this type of insurance. In the case of Fort v. The State, 92 Ga. 8, decided by the Supreme Court in 1893, that Court held that the Insurance Act of 1887 did not regulate the doing of an insurance business by unincorporated companies. Promptly after this decision, the Legislature enacted a statute now codified as Section 56-231 of the Code, providing:
"All laws regulating the business of insurance in this State by companies shall apply to individuals, associations and corporations in like business."
It is my opinion that this statute subjects the operation of reciprocal insurance companies to the same licensing and other requirements as is required of stock or mutual companies. By inference it has been previously so decided by this Department. My opinion to you dated August 25, 1947, Opinions of The Attorney General, 1945-47, page 374, contains the following expression of opinion:
"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 once they are granted permission to do business."
Attorney General M. J. Yeomans rendered a ruling to like effect on January 23, 1933, Opinions of The Attorney General, 1933-34, page 336. I still adhere to this view of the matter.
You also ask about your authority to issue rules and regulations governing reciprocals in the absence of a statute. It is my opinion that the general power to make rules and regulations conferred upon the Insurance Commissioner by Section 56-109 of the 1933 Code is ample authority for the making of appropriate rules and regulations with respect to reciprocal or inter-insurance exchange.
INSURANCE-Investment Certificates 1. The Trustee Savings Act of 1949, Georgia Laws 1949, page 1123 provides for the issuance of a contract for a consideration to be performed upon the death of one of the contracting parties whereupon the other party agrees to pay a sum of money. Investment contracts visualized by that Act are, therefore, policies of life insurance within the purview of Code Section 56-901, as amended by Acts of 1937, page 702. 2. Corporations issuing investment certificates under the terms of the Trustee Savings Act, approved February 25, 1949, Georgia Laws 1949, page 1102, are engaged in the business of life insurance and as such, subject to all of the provisions of the Constitution and laws of Georgia regulating insurance companies. 3. That portion of the Trustee Savings Act of 1949 which purports to confer the power to issue investment certificates upon domestic corporations with

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a paid in capital of $25,000 or more is unconstitutional and void, as in conflict with Article III, Section VII, Paragraph XVII, which places in the Secretary of State the exclusive power to grant charters to insurance companies. 4. That portion of the Trustee Savings Act of 1949 which purports to relieve the named corporation of the obligation to obtain a license or permit other than the license to deal in securities is unconstitutional and void because in conflict with Article IV, Section VI of the 1945 Constitution providing for the licensing of insurance companies and their regulation. 5. Since the term "life insurance" though used in the Constitution of 1945, is not defined in that document, it must be construed when so used in the light of previous legislative definition of "life insurance" existing at the time the Constitution of 1945 was adopted.

Honorable Zack D. Cravey Comptroller General and Insurance Commissioner of Georgia

October 9, 1950

OFFICIAL OPINION FACTS:
The "Trustee Savings Act" approved February 25, 1949, Georgia Laws 1949, page 1123, Ga. Code Ann. 1949 Temporary Supplement Chapter 109-7, undertakes to grant certain additional corporate powers to every domestic corporation with a paid in capital of not less than $25,000. The principle of these additional corporate powers is to issue, after first obtaining a license from the Secretary of State as a dealer under the security laws of Georgia, instruments known as investment certificates. These investment certificates are described in Section 109-702 (a) as:
" ... Instrument(s) evidencing ... agreement(s) by and between the founder, the issuer and the trustee, wherein the founder agrees to pay to the trustee certain sums of money at the time and in the manner set forth in the agreement, and wherein the trustee agrees to invest the money and to perform such other acts and things as are authorized ... upon the order of the founder or the co-beneficiary or beneficiaries of the founder."
The purchasers of such certificates, according to the terminology of the Act, are known as "founders," !Georgia Code Section 109-702 (b). The corporation issuing them is identified as the "issuer." By the terms of the investment certificate the issuer agrees to pay to a trustee such sums as may be paid in from time to time by the founder, which sums the trustee shall hold and invest. The obligation of the issuer is to deliver all funds entrusted to it to the trustees within eight days after receipt of same.
These investment certificates are made non-negotiable and non-transferable and provide no method by which the founder may terminate his contract and recover all or any portion of funds deposited by him. The obligation of the trustee to pay or disburse the funds arises only upon the death of the founder and to or in accordance with directions of a beneficiary or co-beneficiary, which apparently may be any natural person who would be entitled to inherit from the founder under laws of descent and distribution. Either the trustee or the issuer may effect life insurance upon the lives of the founders for the unpaid balance of investment certificates when directed to do so by the founder. The beneficiary or co-beneficiary may authorize the disbursement in discharge of obligations of the deceased founder only to the classes of obligations described in Section 113-1508 of the Code and presumably in the same order of priority. Certificates may not exceed

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$2500 in face amount and not more than $1500 of this amount may be paid on debts or obligations owed by the founder.
In the foregoing statement no effort is made to make an exhaustive and detailed analysis of the Act, but only its principal features are given so as to escape the broad outlines of the operation contemplated by the statute. QUESTION:
Is the issuance of investment certificates under the Trustee Savings Act, Georgia Laws 1949, page 1123, the issuance of life insurance? ANSWER:
Prior to 1937 a life insurance contract was defined in Section 56-901 of the 1933 Code as follows:
"A life insurance policy is a contract by which the insurer, for a stipulated sum, engages to pay a certain amount of money if another shall die within the time limited by the policy. The life may be that of the insured or of another in the continuance of whose life the insured has an interest."
On December 10, 1936 the Supreme Court decided the case of South Georgia Funeral Homes Incorporated vs. Harrison, 183 Ga. 379. In that case the Supreme Court in effect held that a contract contingent upon death and dischargeable by furnishing certain funeral merchandise was not a life insurance policy within the meaning of the section above quoted in the absence of some element of risk to the individual contracting parties. At the 1937 session of the Legislature, which convened shortly thereafter, the definition of a life insurance contract was expanded (Ga. Laws 1937, page 702). The expanded definition which appears as Section 56-901, Cumulative Pocket Part, Georgia Code Ann. is as follows:
"A contract of life insurance is one whereby the insurer, for a consideration, assumes an obligation to be performed upon the death of the insured or upon the death of another in the continuance of whose life the insured has an interest, whether such obligation be one to pay a sum of money, or to perform services, or to furnish goods, wares or merchandise or other things of value, and whether the cost or value of the undertaking on the part of the insurer be more or less than the consideration flowing to him. Every person, firm or corporation writing or issuing contracts of life insurance, as defined in this section, shall be deemed to be engaged in th~ business of life insurance and shall be subject to all of the provisions of the laws of Georgia regulating life insurance companies."
It is only reasonable to assume that the 1937 Act of the Legislature represented a determination by that body to the effect that those persons who enter into contracts payable only in the evented death are entitled to and shall receive all of the protection of financial security, examination, regulation and control afforded to policy holders, notwithstanding the fact that there might be little or no element of risk in their contracts. In Harrison vs. Tanner-Poindexter Company, 187 IGa. 678, decided February 16, 1939, the Supreme Court in effect held that the Act of 1937 had achieved such a result.
Thereafter the 1945 Constitution was adopted. In Article III, Section VII, Paragraph XVII (Code Sec. 2-1917), the power of the Legislature to grant corporate powers and privileges was limited in the following manner:
"The General Assembly shall have no power to grant corporate powers and privileges to private companies, to make or change election precincts, nor to establish bridges or ferries, nor to change names of legitimate children; but it shall prescribe by law the manner in which such powers shall be exercised by the courts; it may confer this authority to grant corporate powers and privileges to private companies to the judges of the superior courts of this State in vacation. All corporate powers and privileges to banking, trust, insurance, railroad canal,

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navigation, express and telegraph companies shall be issued and granted by the Secretary of State in such manner as shall be prescribed by law; and if in any event the Secretary of State should be disqualified to act in any case, then in that event the legislature shall provide by general laws by what person such charter shall be granted."
It is noteworthy that the 1945 Constitution does not define "insurance" or "insurance company." We must assume, therefore, that with respect to life insurance it adopted and recognized the legislative definition given to insurance contracts by the Act of 1937 cited.
Judged by the foregoing Code Section 56-901, as amended by the Act of 1937, and by the construction of the Act by the Supreme Court in Harrison vs. Tanner-Poindexter Company, supra, the Trustees Savings Act contemplates the issuance of life insurance contracts. It obviously undertakes to relieve corporations issuing such certificates from complying with insurance laws of this State, stating in Section 109-703:
" ... No other license or permit shall be required by the State for the exercise of any of the rights, powers or privileges granted to issuers or trustees by the provisions of this Chapter."
This clearly conflicts with Article IV, .Section VI, Paragraphs II, III, IV and V of the 1945 Constitution (Code Sections 2-2902, 2-2903, 2-2904 and 2-2905), as well as with the constitutional provisions for the granting of corporate powers to insurance companies. In such a conflict of legislative enactment with provisions of the Constitution, the Act of the legislature must of course yield.
CONCLUSION: The Trustee Savings Act of 1949 is unconstitutional in that it attempts to
grant corporate insurance powers and privileges in a manner different from that provided by the Constitution and in that it undertakes to relieve corporations issuing insurance contracts from the constitutional regulations of insurance designed to protect the policy holders.
INSURANCE-Organization meetings Insurance companies, to comply with the law, must come under the super- vision of the insurance commissioner before organizing.
March 21, 1950 Honorable Zack D. Cravey Insurance Commissioner
OFFICIAL OPINION FACTS:
The incorporators, in organizing the company, and at the organization meeting of the stockholders, granted by resolution authority to the directors to sell from time to time, at such price and upon such terms as they deemed expedient, the remaining authorized capital stock of the company up to, but not exceeding one million dollars par value. QUESTION:
Is this procedure strictly in accordance with the law?
ANSWER: I refer you to Section 56-802 of the Code of Georgia which reads as follows: "The capital stock of any firm insurance company, whether incorporated by
special Act of the General Assembly or by the Secretary of State under the gen-

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erallaw, may be increased to such an amount as may be desired by the stockholders of such company, or said capital stock may be decreased to any sum, not less than $100,000, as may be desired by the stockholders of such company, at a meeting of such stockholders, called for the special purpose by order of the board of directors of such company, of which meeting notice shall be given to each stockholder (or in case of death to his legal representative or heirs at law), personally, or by mail addressed to his last known residence, at least 30 days previous to such special meeting, and such increase or decrease shall be made in such manner as shall have been determined by the stockholders at such meeting, it requiring the vote of a majority in amount of the entire capital stock of such company to authorize such increase or decrease, and the manner of effecting the same. If at such meeting the stockholders, holding the majority in amount of such capital stock, shall vote for such increase or decrease, the proceedings of the meeting shall be reduced to writing and entered upon the books or minutes of the company, and a copy thereof, verified by the president or secretary thereof, shall be filed and recorded in the office of the Secretary of State, and when so filed and recorded shall become an amendment to the charter of said company, and a certified copy thereof shall be evidence of all facts therein contained in all courts of this State, without further proof: Provided, such increase or decrease shall be approved by the Comptroller General as ex-officio Insurance Commissioner, to be evidenced by indorsing his approval on the said verified copy of such proceedings of said stockholders, which indorsement shall be recorded in the office of the Secretary of State, together with said verified copy, and become a part thereof."
The provisions of this Section are likewise applicable to the subject company under the provisions of Section 56-911 of the Code which reads as follows:
"The principles before stated as to fire insurance, wherever applicable, shall be equally the law of life insurance."
You will note under Section 56-802 that in order to increase the capital stock, a meeting for that special purpose must be called by order of the Board of Directors and each stockholder must be given at least thirty days notice of such meeting.
The meeting at which the Directors were authorized to increase the capital stock was an organizational meeting only as is evidenced by the notice of such meeting which was sent out to the stockholders. Even under the assumption that an increase in capital stock could be authorized at an organizational meeting, the notice of that particular meeting contained no reference whatsoever to the matter of increasing the capital stock. Under the further assumption that the notice was sufficient, a violation of certain provisions of Section 56-802 is still evident. It provides that a meeting to be held for the purpose of increasing capital stock shall be called by order of the Board of Directors. In the situation at hand, there was no Board of Directors which could call such a meeting because the Board of Directors were not elected until the organizational meeting.
I reach the conclusion that in so far as I have pointed out above, the proceedings of the subject company have not been strictly in accordance with the law.
Section 56-110 of the Code gives the Insurance Commissioner the authority to supervise insurance companies before licenses are issued. This Section reads as follows:
"Immediately upon the granting of the charter to any insurance company, and before it shall offer for sale any of its capital stock, such company so receiving a charter in this State or being chartered in any other State and offering its stock for sale in this State, before it has been organized and has procured a license to do business in this State, shall come under the supervision of the Insur-

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ance Commissioner, and shall collect, hold and disburse its funds under such rules and regulations as the Insurance Commissioner may prescribe. The Insurance Commissioner shall give directions as to all use of funds so collected until same shall be invested as the law directs and the company fully organized and licensed to do business in this State, thereby becoming subject to the rules and regulations herein provided."
INSURANCE-Premium Tax "Premium deposits" are not a part of "gross premiums," but the amounts retained out of "premium deposits" to cover losses, expenses, etc. are a part of "gross premiums."
June 13, 1950
Honorable Zack D. Cravey Comptroller General and Insurance Commissioner
OFFICIAL OPINION FACTS:
From your request and from the memorandum attached, I understand that in several respects business methods of this group of companies differ materially from the methods and practices of stock companies and the more familiar type of mutual companies. Among the more important differences are the following: (1) Risks are carefully selected and carefully inspected at frequent intervals; (2) policies are uniformly large, their average risk being between one and one and one-half million dollars; (3) more than usual emphasis is placed upon fire prevention; (4) they have no fixed premium rates but costs of coverage to their members are determined monthly upon the basis of losses and expenses, including reserves; and (5) policies are not issued through agents.
Upon acceptance of a risk and issuance of a policy, a company of this group requires a deposit of a sum substantially in excess (about 10 times) of the anticipated cost of the insurance. This deposit is the same whether the policy be written for a few months or for several years. The high initial deposit is required in order that the company may be amply solvent at all times, even in the event of high losses, and so that the company may have sufficient assets enabling it to write the large single policies which it is their practice to write. In many ways these deposits may be likened to loans made without interest.
At the end of each month losses and expenses are computed and deducted from the funds on deposit for each policy holder. The policy holder retains the right to cancel and withdraw the unused deposit to his credit at any time and there is nothing comparable to the short term rate charged upon other types of policies.
QUESTION: What is the proper method of computing premium tax on business of a group
of mutual insurance companies commonly known as the Associated Factory Mutual Insurance Companies, in the event some or all of these companies are admitted to Georgia?
ANSWER: IGeorgia's tax upon gross insurance premiums is provided in Code Section
92-2509.1, Cumulative Pockets Parts, as follows: "All foreign and domestic insurance companies doing business in this State
shall pay a tax of two per cent, upon gross direct premiums received by them

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upon persons, property or risks in Georgia from January 1, to December 31, both inclusive, of each year, without regard to business ceded to or assumed from other companies, with no deductions for dividends whether returned in cash or allowed in payment or reduction of premiums, or for additional insurance; nor shall any deductions be allowed for premium abatements of any kind or character or for reinsurance or for cash surrender values paid, or for losses or expenses of any kind, said tax being imposed upon gross premiums received from direct writings, without any deductions whatever except from premiums returned on change of rate or cancelled policies. The term 'gross direct premiums' shall include annuity considerations: Provided that local organizations known as 'farmers' mutual insurance companies' operating in not more than four counties in a division shall not be subject to this tax."
In order to answer your questions we have only to determine what the term "gross premium" means, as applied to the members of Associated Factory Mutuals Group. The word "premium" is defined in general terms in 44 C.J.S., Insurance, Section 340, page 1302 as:
"A premium is a consideration for a contract of insurance. A premium is distinguishable from assessment in that a premium is fixed as to the amount and time of payment."
The meaning of the term may, however, vary depending upon the intent with which it is used. Pioneer Mercantile Company v. Freeman, 29 Ga. App. 11. It is my opinion that the term "gross premium" should be broadly interpreted in this connection so as to include all charges made for insurance coverage, save only the exceptions expressly enumerated in the statute.
Thus, while the term "assessment" is not, strictly speaking, synonymous with the term "premium" it seems to me a clear legislative intent to subject to the premium tax of Section 92-2509.1 those exactions collected by way of assessment as well as those charges made at a table rate. Such broad interpretation seems consistent with the holding of the Court in New York Life Insurance Co. v. Wright, 31 Ga. App. 713. The so-called premium deposit is sometimes known as an "advance premium," of which term it is said in 44 C.J.S. Section 340, page 1302:
"An 'advance premium' is not really a premium in the strict sense of the term but is a deposit against premiums to insure payment of premiums to become due."
Indeed, it appears that recovery of charges is here effected by a type of assessment rather than by premium payment and that the so-called premium deposit is a cash deposit to assure payment of assessments. Of course you could not, as Insurance Commissioner, approve the required deposits as "premium rates" because of the discrimination in favor of the long term policy holder and against the short term policy holder.
I am, therefore, of the opinion that the specific questions asked in your letter should be answered as follows:
(A) The "premium deposits" required by such companies should not be considered "gross premiums" within the meaning of that term as used in Section 92-2509.1 of the Code of Georgia but should rather be considered deposits from which the cost of insurance or "gross premiums" are taken from time to time.
(B) The amounts retained by such companies out of the premium deposits for the payment of losses, expenses, and maintenance of reserves constitute their "gross premiums" upon which the tax described in Section 92-2509.1 of the Code should be imposed, if such companies are licensed to transact business in this State.

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INSURANCE-Securities required to be deposited The amount of securities required to be deposited in order to qualify to write: 1. "Fire and Allied Lines" of Insurance, $10,000.000 to $25,000.00; 2. "Miscellaneous Casualty" Insurance, $10,000.00 to $25,000.00; 3. "Miscellaneous Casualty'' and "Fidelity and Surety" Insurance, $10,000.00 to $25,000.00 plus $25,000.00; 4. "Miscellaneous Casualty," "Fidelity and Surety" and "Workmen's Com~ 'pensation" Insurance, $10,000.00 to $25,000.00 plus $25,000.00, plus either a surety bond in the amount of $50,000.00 or in lieu thereof a deposit of $50,000.00 in securities; 5. "Fire and Allied Lines" and "Miscellaneous Casualty," $10,000.00 to $25,000.00 plus $10,000.00 to $25,000.00; 6. "Fire and Allied Lines"~ "Miscellaneous Casualty" and "Fidelity and Surety Bonds," $10,000.00 to $25,000.00 plus $10,000.00 to $25,000.00 plus $25,000.00; 7. "Fire and Allied Lines"~ "Miscellaneous Casualty," "Fidelity and Surety Bonds" and "Workmen's Compensation," $10,000.00 to $25,000.00 plus $10,~ 000.00 to $25,000.00 plus $25,000.00 plus a Surety Bond of $50,000.00 or in lieu of said Surety Bond deposit of securities in the amount of $50,000.00.
August 31, 1950 Honorable Zack D. Cravey Insurance Commissioner
OFFICIAL OPINION QUESTION:
What amount of securities are required to be deposited by a foreign fire, casualty, or multiple line insurance company in order to qualify it to write:
1. "Fire and Allied Lines" of Insurance 2. "Miscellaneous Casualty" Insurance 3. "Miscellaneous Casualty" and "Fidelity and Surety" Insurance 4. "Miscellaneous Casualty"- "Fidelity and Surety" and "Workmen's Com~ pensation" Insurance 5. "Fire and Allied Lines" and Miscellaneous Casualty" 6. "Fire and Allied Lines" ~ "Miscellaneous Casualty" and "Fidelity and Surety Bonds" 7. "Fire and Allied Lines"- "Miscellaneous Casualty," "Fidelity and Surety Bonds'' and "Workmen's Compensation." ANSWER: To determine the answer to the above question it is first necessary to construe the several statutes regarding required deposits for the different types of insurance, to reconcile their conflicts and determine their validity. An Act of the General Assembly approved March 28, 1935, Ga. Laws 1935, p. 149, fixed the amount of securities required to be deposited by Fire, Marine and Inland Insurance Companies of the first value of $10,000.00 with an added formula whereby it should be increased but not to exceed $25,000.00. In regard to Fire and Allied Lines of Insurance, there seems to be no amendment which would have varied the amount set out in the Act of 1935 nor does it seem to be in conflict with any other existing statutes. Therefore, it is my opinion that the answer to Section 1 of your question as to the amount of securities required to be deposited to qualify to write "Fire and Allied Lines" of Insurance would be $10,000.00 to $25,000.00 An Act of the General Assembly approved March 11, 1937, Ga. Laws 1937, p.

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705, brought Life, Casualty and Indemnity Insurance Companies under the provisions of the above set out 1935 Act. Therefore, it is my opinion that in answer to Section 2 of your question as to the amount of securities required to be deposited to qualify to write "Miscellaneous Casualty" Insurance would be $10,000.00 to $25,000.00.
Section 3 of your question deals with "Miscellaneous Casualty" and "Fidelity and Surety" Insurance. Section 1-A of the Act approved March 11, 1937, Ga. Laws 1937, p. 707, attempts to provide that if a Casualty Company has qualified under that Act, that in connection with the writing or offering to write other forms or kinds of insurance other than Casualty, shall be required to make no further or additional deposit. In connection with a company writing both Miscellaneous Casualty and Fidelity and Surety Insurance, said Section 1-A of the Act of 1937, which is a part of Section 56-301 of the Supplement to the Annotated Code of Georgia, would be in conflict with an Act of the General Assembly of 1912, Ga. Laws 1912, p. 119, Code Section 56-311, which provides that before any Surety or Bonding Company shall write any bonds in this State it shall be required to deposit the sum of $25,000.00 with the State Treasurer. Said Act of 1937 did not by implication or otherwise amend or repeal the Act of 1912 providing for deposits before being qualified to write Fidelity or Surety Insurance.
The question has been raised in regard to Section 1-A of the said Act of 1937 being void and unenforceable. In an opinion to Honorable Zack D. Cravey, Insurance Commissioner, dated April 15, 1947, the validity of this Section of this Act had not been raised, but since the validity of Section 1-A of this said Act has been questioned in this request, I feel it necessary to pass upon the constitutonality of said Section 1-A of the said Act of 1937, Ga. Laws 1937, p. 707.
Section 1-A of said Act attempts to exempt Casualty Companies in connection with writing or offering to write other forms of insurance, from making further or additional deposits. The title of said Act of 1937 provides for including Life, Casualty and Indemnity Insurance Companies under the same requirements for deposits as Fire, Marine and Inland Insurance Companies as set out in the Act of 1935, Ga. Laws 1935, p. 149. The only other proviso in said title is to give policy-holding claimants preference over common or unsecured claims. There is no indication in the title of said Act that Companies writing Casualty Insurance would be shown a preference in regard to making deposits with the State Treasurer or that they would be exempt from requirements made of other Insurance Companies. Paragraph 8, Section 7, Article 3 of the Constitution of Georgia, Code Section 2-1908, provides:
"No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof."
Section 1-A of said Act of 1937 is not only not covered by the title, but is in direct conflict with the purpose as set forth in said title, as the title indicates that companies writing Casualty Insurance are being brought under the Act of 1935 the same as Fire, Marine, Life, Indemnity and Inland Insurance Companies and then attempts to exempt Casualty Companies in the body of the Act from meeting requirements the same as the other Companies. Therefore, I am of the opinion that Section 1-A of the Act of 1937 exempting Casualty Companies from further or additional deposits does not meet the requirements of the Constitution of Georgia as.set out in Paragraph 8, Section 7, Article 3, and is therefore unconstitutional.
Nowithstanding prior opinions in which the constitutionality of said Section 1-A had not been raised, I am of the opinion that said Section 1-A of the Act of 1937, Ga. Laws 1937, p. 707, is in violation of the State Constitution.

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In my opinion to Honorable Zack D. Cravey, the Comptroller General, dated January 2, 1948, it was not necessary to deal with the validity of said Section 1-A since that opinion was covering whether or not Fire Insurance Companies would be required to make additional deposits, and Fire Insurance Companies were not covered in said Section 1-A of said Act of 1937.
Therefore, on account of the conflict between the Act of 1937, Section 56-301 of the Supplement to the Annotated Code, and Section 56-311, and on the further grounds that I am of the opinion that Section 1-A of the Act of 1937 is unconstitutional, I am of the opinion in answer to Section 3 of your question, that the amount of securities required to be deposited to qualify to write "Miscellaneous Casualty" and "Fidlity and Surety" Insurance would be $10,000.00 to $25,000.00 plus $25,000.00.
In answer to Section 4 of your question, it would only be necessary to add the amount of the deposits required to qualify to write Workmen's Compensation Insurance to the amounts set out in my answer to Section 3 of your question, and for the same reasons. The amounts required to qualify to write Workmen's Compensation Insurance are set out in the Supplement to the Annotated Code in Section 114-606, which provides for furnishing bond payable to the State in the sum of $50,000.00 or in lieu of such bond, a deposit of the same amount may be made with the Treasurer of the State in the form of other securities. Therefore, I am of the opinion in answer to Section 4 of your question, the amount of securities required to be deposited to qualify to write "Miscellaneous Casualty" - "Fidelity and Surety" and "Workmen's Compensation" Insurance would be $10,000.00 to $25,000.00 plus $25,000.00 plus either a surety bond in the amount of $50,000.00 or in lieu thereof a deposit of $50,000.00 in securities.
Under the reasoning set forth heretofore in this opinion, I am of the opinion in answer to Section 5 of your question the amount of securities required to be deposited to qualify to write "Fire and Allied Lines" and "Miscellaneous Casualty" Insurance would be $10,000.00 to $25,0000.00 plus $10,000.00 to $25,000.00.
In answer to Section 6 of your question and in line with the above ruling, I am of the opinion that the amount of securities required to qualify to write "Fire and Allied Lines" - "Miscellaneous Casualty" and "Fidelity and Surety Bonds" Insurance would be $10,000.00 to $25,000.00 plus $10,000.00 to $25,000.00 plus $25,000.00.
In reply to Section 7 of your question and following the same reasoning, I am of the opinion that the amount of deposit required to qualify to write "Fire and Allied Lines"- "Miscellaneous Casualty" - "Fidelity and Surety Bonds" and "Workmen's Compensation" would be $10,000.00 to $25,000.00 plus $10,000.00 to $25,000.00 plus $25,000.00 plus a Surety Bond of $50,000.00 or in lieu of said Surety Bond deposit of securities in the amount of $50,000.00.
INTOXICATING LIQUORS-Employees (Unofficial) Section 58-1062 of the Georgia Code Annotated Supplement, prohibiting females from working in liquor stores, is not applicable to stores dealing in malt beverages and wines.
September 6, 1950
Honorable J. R. Powell, Jr. Attorney at Law
I am in receipt of your letter of August 23, 1950, in which you ask if the Georgia law prohibiting females from working in a liquor store is applicable so as to prevent females from working in a beer parlor or a place where wine is sold.

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The answer to your question is found in Section 58-1062 of the supplement to the 1933 Annotated Code of Georgia, which reads as follows:
"No female shall be allowed to work in any liquor store as hostess, bar maid or in any manner whatsoever."
The above Code Section relates only to liquor stores which deal in distilled spirits as codified in Chapter 58-10 of the Georgia Code Annotated Supplement. Chapters 58-7, 8 and 9, Georgia Code Annotated, Supplement, relate to alcoholic beverages other than distilled spirits, namely, malt beverages, domestic wines and other wines. Nowhere in these chapters is there a prohibition against females working in a beer parlor or store dealing in alcoholic beverages.
The above enumerated chapters being separate and distinct and in no way relating to the other, it must be concluded that the provisions of Section 58-1062, supra, are applicable only to liquor stores dealing in distilled spirits.

MILK CONTROL BOARD-Jurisdiction The Regents of the University System of Georgia are subject to the rules and regulations of the Milk Control Board just as any other milk distributor.

Honorable C. G. Duncan, Chairman Milk Control Board

October 24, 1950

OFFICIAL OPINION FACTS:
The Regents of the University System of Georgia are in a bona fide dairy business, selling customers in and around Athens, including themselves. They produce about one-third of the milk that they sell and like any other distributor, they buy the other two-thirds from producers in the vicinity.

QUESTION: Would they be subject to the rules and regulations as provided by law?

ANSWER: Code Section 42-516 of the Annotated Code of Georgia, 1933, Pocket Supple-
ment, provides as follows:
"Any individual, firm, or corporation purchasing either raw or pasteurized milk for resale, restaurants, hotels, and drug stores who dispense such milk as personal service in their business excepted, shall be classified as milk or cream brokers."
The State of Georgia v. Regents of the University System of Georgia, et al., 179 Ga. p. 210, Headnote 1, reads as follows:
"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 Regents, is not a debt of the State, and therefore is not affected by constitutional limitations upon State indebtedness."
It is my opinion that the Regents of the University System of Georgia would be subject to the laws and the valid rules and regulations of the Milk Control Board.

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MORTGAGES-Recording (Unofficial) Mortgages against real estate are recorded in the county where the property is located and liens against personal property are recorded in the county where the property is located, when located in a county other than the mortgagor's residence.
March 28, 1950 Mr. J. MacArthur
This will acknowledge receipt of your letter of recent date with reference to recording mortgages, as provided under Section 67-108 of the Code of Georgia of 1933.
The purpose of Section 67-108 of the Code is to provide protection against third parties. Mortgages against real estate are recorded in the county where the property is located and liens against personal property are recorded in the county where the property is located, when located in a county other than the mortgagor's residence. The residence of a corporation mortagor would, for the purpose of recording a lien, be the county in which incorporated, or if incorporated by the Secretary of State, the residence of the corporation would be the principal place of doing business, or the home office, as set out in said charter.
Section 67-2501 of the Code of Georgia provides: "When instruments requiring record take effect.-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 notice, who may have acquired a transfer or 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 inspection as other records of his office."
For further information I quote the following provisions of law: "67-109. (3260) Effect of failure to record.-The effect of failure to record a mortgage shall be the same as is the effect of failure to record a deed of bargain and sale." "29-401. (4198) When and where deeds recorded; priority.-Every deed conveying lands 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 such deed loses its priority over a subsequent recorded deed from the same vendor, taken without notice of the existence of the first."
MUNICIPAL CORPORATIONS-Business License (Unofficial) Where a municipality is authorized by its charter to levy a license fee for peddling or carrying on other businesses, a certificate issued by the ordinaries or the various counties of Georgia under Code Section 84-2005 of the Annotated Code of Georgia will not be recognized in lieu of said license, and the governing authorities of a municipality are not compelled to recognize such certificates.
September 11, 1950 Honorable J. H. Bailey
I am in receipt of your letter of recent date in which you state that the Ordinary of Mitchell County issued a certificate licensing an individual to carry on a furniture business in Mitchell County, and that the certificates were issued in pursuance to Georgia Code Annotated, Section 84-2005, but that the City

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Council of Camilla, Georgia refused to recognize the certificate in lieu of a City license. Then you ask just what is the legal significance of the certificate issued by the Ordinary.
Section 84-2005 of the Georgia Code of 1933, Supplement, provides as follows: "Ordinaries are hereby authorized to grant license to peddlers, indigent and infirm persons upon such terms as they in their discretion impose." The Supreme Court of Georgia in the case of Justice vs. City of Atlanta, 122 Ga. 152, in interpreting the above quoted code section as applied to the necessity of obtaining a city license, stated the following: "The grant by the ordinary of Fulton County, under the Political Code, Section 1649, of a free license to peddle, to an indigent and crippled person, does not relieve such person from the necessity of obtaining a city license from the municipal authorities of the City of Atlanta, that city having by its charter express authority to require a license from peddlers, and having exercised its power by imposing such a license tax, and it not appearing that the person claiming exemption from license was a Confederate veteran, or a veteran of any other war." From the above quoted decision, I am of the opinion that, if by its charter the City of Camilla, Georgia, may impose a license tax upon certain businesses conducted within its city boundaries, the City Council acted within its power in refusing to recognize the certificate.
MUNICIPAL CORPORATIONS-Granting of Tax Exemptions (Unofficial) Municipal Corporations are without authority to grant tax exemptions to industries or businesses.
April 19, 1950
Hon. Sam Matthews I am in receipt of your letter of March 22nd, in which you request my unoffi-
cial opinion as to whether or not there is any duty or responsibility on the county or city authorities to take any steps toward relieving an industry or business of any kind from taxes for five years or less, and further, whether or not such authorities have any such right under the Constitution and laws of this State as they now exist.
Your inquiry is answered by Section 2-5405 of the State Constitution, which reads as follows:
"Existing exemptions under the amendment to the Constitution providing for the exemption of certain industries from taxation appearing in Acts of the General Assembly of 1923, extra session, page 67, ratified November 4, 1924, shall continue of force until the expiration of the term for which granted."
You will note that the above provision of the Constitution only continues in force, exemptions which were previously granted under the Constitution as it existed prior to 1945. Since the adoption of the new Constitution, the exemption of industries from taxation as appearing in the Acts of the Extra Session of 1923, page 67, is no longer effective except in those instances where the exemption was obtained prior to the adoption of the new Constitution.
I also direct your attention to the last sentence of Section 2-5404 of the Constitution, which provides as follows:
"All laws exempting property from taxation, other than the prbperty herein enumerated, shall be void."
The Supreme Court of Georgia in the case of Norris vs. Town of Union City, 184 Ga. p. 283, held that the Town of Union City in 1921 was unauthorized to

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exempt from taxation all new industries within its corporate limits for a period of five years. This ordinance was passed two years prior to the constitutional amendment ratified November 4, 1924, referred to in Section 2-5405 of the 1945 State Constitution. The Court in this case held:
"The ordinance at the time of its passage and at the present time is void under the constitution of the State, Art. 7, Section 2, Paragraph 4. (Code Section 2-5005) which declares that 'all laws exempting property from taxation other than the property herein enumerated shall be void'."
In view of the above provisions of law, I am of the opinion that towns and counties are prohibited from granting tax exemptions to industries or businesses.
MUNICIPAL CORPORATIONS-Newspaper Tax (Unofficial) 1. There is nothing in our State law which expressly or by intimation authorizes municipalities to levy a license tax on newspapers where such a levy will have the effect of regulation in contravention to the First and Fourteenth Amendments of the United States Constitution. 2. While there is no statute dealing specifically with the question of prohibition against the levying of a license tax on newspapers by a municipality, if such a levy is determined to be regulatory in nature it would be in contravention to the First and Fourteenth Amendments of the United States Constitution and would therefore be null and void. 3. The constitutional guarantee of a free press does prohibit a municipality from levying a regulatory license tax on newspapers where such a levy subjects the newspaper to operational and expression control by the municipalities.
May 18, 1950
Honorable M. R. Ashworth, Publisher The Ledger-Enquirer Newspapers Columbus, Georgia
I am pleased to acknowledge the request of Governor Herman E. Talmadge to give you a ruling on the following questions in your request to him:
"1. Is there anything in state law which expressly or by intimation authorizes municipalities to levy a 'license tax' on newspapers?
"2. Is there anything in state law which expressly or by intimation prohibits the levying of 'license tax' on newspapers?
"3. In view of the constitutional guarantee of a free press, isn't it unconstitutional for a municipality to attempt to levy a 'license tax' on newspapers from the federal point of view?"
In your request you also state: "The practice which we consider is a dangerous precedent is that in which municipalities are levying what is called 'license tax' on newspapers. There is no argument against taxes involved. But in calling the levy a 'license' fee this action by the municipalities raises this question; does any branch of government, local, state, or national have the authority to 'license' a newspaper in view of the constitutional guarantees of a free press. "We are ready to concede that no municipality is claiming, at this time, a right to 'license' a newspaper in the regulatory sense of the word but we contend that use of the term in levying a tax could be the dangerous precedent from which a free press could be hampered at some time in the future. Obviously if a branch of government had the right to 'license' a newspaper, it also would

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have the right to withhold or cancel a license, and we feel that in time to come municipalities might gradually assume that they have such rights stemming from present 'license tax' procedures."
From the above statements, it appears that the main point in issue is in the use of the word "license'' by municipalities. Therefore, it is necessary to ascertain what the Appellate Courts of Georgia have held regarding the use of this term.
The Supreme Court of Georgia in the case of The Home Insurance Company v. Augusta, 50 Ga. 530, held:
"There is a clear distinction recognized between a license, granted or required as a condition precedent before a certain thing can be done, and a tax assessed on the business which that license may authorize one to engage in: 42 Georgia, 596. A license is a right granted by some competent authority to do an act which, without such license, would be illegal. A tax is a rate or sum of money assessed on the person, property, etc., of the citizen. A license is issued under the police power of the authority which grants it. If the fee required for the license is intended for revenue, its exaction is an exercise of the power of taxation. The tax assessed upon complainant by the City Council of Augusta, by the ordinance of January 5th, 1874, although called a 'license tax', is more properly a tax than a license fee, or a fee exacted in order to secure the right to engage in a business which, without paying for and obtaining such authority, would be illegal."
In the above cited case, the City of Augusta issued a certificate entitled, "City Business License," and entered same in a book called, "The License Book for 1874." The Court in construing the city ordinance upon which such certificate was issued held that although it was called a "license tax," it was more properly a tax than a license fee, or a fee exacted in order to secure the right to engage in a business which, without paying for and obtaining such authority, would be illegal.
The provisions of the Constitution of the United States and of the State of Georgia guarantee the freedom of the press. The Supreme Court of the United States has held that statutes and ordinances seeking to levy licenses on selling newspapers which are based upon the amount of the circulation of the newspapers are void and unconstitutional under these provisions.
In the case of Grosjean v. American Press Company, 297 U. S. 233, 56 Sup. Ct. 444, the Supreme Court of the United States had under consideration a statute passed by the legislature of the State of Louisiana. This statute levied a license or privilege tax on persons, firms or corporations, domestic or foreign, engaged in the business of selling or making any charge for advertising or for advertisements whether printed or published in any newspaper, magazine or other publication having a circulation of more than 20,000 copies per week and fixing the license at 2% of the gross receipts of such business. The Supreme Court of the United States held the statute void as violating the provisions of the Constitution of the United States guaranteeing freedom of the press. I quote from the decision:
"This suit was brought by appellees, nine publishers of newspapers in the State of Louisiana, to enjoin the enforcement against them of the provisions of 1 of the act of the legislature of Louisiana known as Act No. 23, passed and approved July 12, 1934, as follows:
'That every person, firm, association or corporation, domestic or foreign, engaged in the business of selling, or making any charge for, advertising or for advertisements, whether printed or published, or to be printed or published, in

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any newspaper, magazine, periodical or publication whatever having a circulation of more than 20,000 copies per week, or displayed and exhibited, or to be displayed and exhibited by means of moving pictures, in the State of Louisiana, shall, in addition to all other taxes and licenses levied and assessed in this State, pay a license tax for the privilege of engaging in such business in this State of two per cent (2%) of the gross receipts of such business.'
"The nine publishers who brought the suit publish thirteen newspapers; and these thirteen publications are the only ones within the State of Louisiana having each a circulation of more than 20,000 copies per week, although the lower court finds there are four other daily newspapers each having a circulation of 'slightly less than 20,000 copies per week' which are in competition with those published by appellees both as to circulation and as to advertising. In addition, there are 120 weekly newspapers published in the state, also in competition, to a greater or less degree, with the newspapers of appellees. The revenue derived from appellees' newspapers comes almost entirely from regular subscribers or purchasers thereof and from payments received for the insertion of advertisements therein.
"The act requires everyone subject to the tax to file a sworn report every three months showing the amount and the gross receipts from the business described in 1. The resulting tax must be paid when the report is filed. Failure to file the report or pay the tax as thus provided constitutes a misdemeanor and subjects the offender to a fine not exceeding $500, or imprisonment not exceeding six months, or both, for each violation. Any corporation violating the act subjects itself to the payment of $500 to be recovered by suit.
* * *
"Third. The validity of the act is assailed as violating the federal Constitution in two particulars-(1) that it abridges the freedom of the press in contravention of the due process clause contained in 1 of the Fourteenth Amendment; (2) that it denies appellees the equal protection of the laws in contravention of the same Amendment.
"1. The first point presents a question of the utmost gravity and importance; for, if well made, it goes to the heart of the natural right of the members of an organized society, united for their common good, to impart and acquire information about their common interests. The First Amendment to the federal Constitution provides that 'Congress shall make no law , .. abridging the freedom of speech, or of the press ... While this provision is not a restraint upon the powers of the states, the states are precluded from abridging the freedom of speech or of the press by force of the due process clause of the Fourteenth Amendment.
* * *
"That freedom of speech and of the press are rights of the same fundamental character, safeguarded by the due process of law clause of the Fourteenth Amendment against abridgment by state legislation, has likewise been settled by a series of decisions of this court, beginning with Gitlow v. New York, 268 U. S. 652, 666, 69 L. ed. 1138, 1145, 45 S. Ct. 625, and ending with Near v. Minnesota, 283 U. S. 697, 707, 75 L. ed. 1357, 1362, 51 S. Ct. 625. The word 'liberty' contained in that amendment embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties as well. Allgeyer v. Louisiana, 165 U. S. 578, 589, 41 L. ed. 832, 835, 17 S. Ct. 427.
* * *
"The tax imposed is designated a 'license tax for the privilege of engaging in such business'-that is to say, the business of selling, or making any charge for,

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advertising. As applied to appellees, it is a tax of two per cent on the gross receipts derived from advertisements carried in their newspapers when, and only when, the newspapers of each enjoy a circulation of more than 20,000 copies per week. It thus operates as a restraint in a double sense. F'irst, its effect is to curtail the amount of revenue realized from advertising, and, second, its direct tendency is to restrict circulation. This is plain enough when we consider that, if it were increased to a high degree, as it could be if valid. (A. Magnano Co. v. Hamilton, 292 U. S. 40, 45, 78 L. ed. 1109, 1114, 54 S. Ct. 599, and cases cited), it well might result in destroying both advertising and circulation."
The Court then reviews the history of the various acts in England and particularly in the State of Massachusetts, which preceded the adoption of these amendments to the constitution and points out that the amendments were adopted specifically to prevent the levying of taxes upon the sale or circulation of newspapers or periodicals:
"A determination of the question whether the tax is valid in respect of the point now under review, requires an examination of the history and circumstances which antedated and attended the adoption of the abridgment clause of the First Amendment, since that clause expresses one of those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' (Herbert v. Louisiana, 272 U. S. 312, 316, 71 L. ed. 270, 272, 47 S. Ct. 103, 48 A.L.R. 1102), and, as such, is embodied in the concept 'due process of law' (Twining v. New Jersey, 211 U. S. 78, 99, 53 L. ed. 97, 106, 29 S. Ct. 14), and, therefore, protected against hostile state invasion by the due process clause of the Fourteenth Amendment. Cf. Powell v. Alabama, supra, 287 U. S. 67, 68, 77 L. ed. 169, 170, 53 S. Ct. 55, 84 A. L. R. 527. The history is a long one; but for present purposes it may be greatly abbreviated.
"For more than a century prior to the adoption of the amendment-and, indeed, for many years thereafter-history discloses a persistent effort on the part of the British government to prevent or abridge the free expression of any opinion which seemed to criticize or exhibit in an unfavorable light, however truly, the agencies and operations of the government. The struggle between the proponents of measures to that end and those who asserted the right of free expression was continuous and unceasing. As early as 1644, John Milton, in an 'Appeal for the Liberty of Unlicensed Printing,' assailed an act of Parliament which had just been passed providing for censorship of the press previous to publication. He vigorously defended the right of every man to make public his honest views 'without previous censure'; and declared the impossibility of finding any man base enough to accept the office of censor and at the same time good enough to be allowed to perform its duties. Collett, History of the Taxes on Knowledge, vol. 1, pp. 4-6. The act expired by its own terms in 1695. It was never renewed; and the liberty of the press thus became, as pointed out by Wickwar (The Struggle for the Freedom of the Press, p. 15), merely 'a right or liberty to publish without a license what formerly could be published only with one.' But mere exemption from previous censorship was soon recognized as too narrow a view of the liberty of the press.
"In 1712, in response to a message from Queen Anne (Hansard's Parliamentary History of England, vol. 6, p. 1063), Parliament imposed a tax upon all newspapers and upon advertisements. Collett, vol. 1, pp. 8-10. That the main purpose of these taxes was to suppress the publication of comments and criticisms objectionable to the Crown does not admit of doubt. Stewart, Lennox and the Taxes on Knowledge, 15 Scottish Historical Review, 3.22-327. There followed more than a century of resistance to, and evasion of, the taxes, and of

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agitation for their repeal. In the article last referred to (p. 326), which was written in 1918, it was pointed out that these taxes constituted one of the factors that aroused the American colonists to protest against taxation for the purposes of the home government; and that the 1evolution really began when, in 1765, that government sent stamps for newspaper duties to the American colonies.
"These duties were quite commonly characterized as 'taxes on knowledge,' a phrase used for the purpose of describing the effect of the exactions and at the same time condemning them. That the taxes had, and were intended to have, the effect of curtailing the circulation of newspapers, and particularly the cheaper ones whose readers were generally found among the masses of the people, went almost without question, even on the part of those who defended the act. May (Constitutional History of England, 7th ed., vol. 2, p. 245), after discussing the control by 'previous censure,' says: "... a new restraint was devised in the form of a stamp duty on newspapers and advertisements,-avowedly for the purpose of repressing libels. This policy, being found effectual in limiting the circulation of cheap papers, was improved upon in the two following reigns, and continued in high esteem until our own time.' Collett (vol. 1, p. 14) says: 'Any man who carried on printing or publishing for a livelihood was actually at the mercy of the Commissioners of Stamps, when they chose to exert their powers.'
"Citations of similar import might be multiplied many times; but the foregoing is enough to demonstrate beyond peradventure that in the adoption of the English newspaper stamp tax and the tax on advertisements, revenue was of subordinate concern; and that the dominant and controlling aim was to prevent, or curtail the opportunity for, the acquisition of knowledge by the people in respect of their governmental affairs. It is idle to suppose that so many of the best men of England would for a century of time have waged, as they did, stubborn and often precarious warfare against these taxes if a mere matter of taxation had been involved. T'he aim of the struggle was not to relieve taxpayers from a burden, but to establish and preserve the right of the English people to full information in respect of the doings or misdoings of their government. Upon the correctness of this conclusion the very characterization of the exactions as 'taxes on knowledge' sheds a flood of corroborative light. In the ultimate, an informed and enlightened public opinion was the thing at stake; for, as Erskine, in his great speech in defense of Paine, has said: 'The liberty of opinion keeps governments themselves in due subjection to their duties.' Erskine's Speeches, High's ed. vol. 1, p. 525. See May's Constitutional History of England, 7th ed. vol. 2, pp. 238-245.
"In 1785, only four years before Congress had proposed the First Amendment, the Massachusetts legislature, following the English example, imposed a stamp tax on all newspapers and magazines. The following year an advertisement tax was imposed. Both taxes met with such violent opposition that the former was repealed in 1786, and the latter in 1788. Duniway, Freedom of the Press in Massachusetts, pp. 136, 137.
"The framers of the First Amendment were familiar with the English struggle, which then had continued for nearly eighty years and was destined to go on for another sixty-five years, at the end of which time it culminated in a lasting abandonment of the obnoxious taxes. The framers were likewise familiar with the then recent Massachusetts episode; and while that occurrence did much to bring about the adoption of the amendment (see Pennsylvania and the Federal Constitution, 1888, p. 181), the predominant influence must have come from the English experience. It is impossible to concede that by the words 'freedom of

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the press' the framers of the amendment intended to adopt merely the narrow view then reflected by the law of England that such freedom consisted only in immunity from previous censorship; for this abuse had then permanently disappeared from English practice. It is equally impossible to believe that it was not intended to bring within the reach of these words such modes of restraint as were embodied in the two forms of taxation already described. Such belief must be rejected in the face of the then well known purpose of the exactions and the general adverse sentiment of the colonies in respect of them. Undoubtedly, the range of a constitutional provision phrased in terms of the common law sometimes may be fixed by recourse to the applicable rules of that law. But the doctrine which justifies such recourse, like other canons of construction, must yield to more compelling reasons whenever they exist. Gf. Continental lllinois Nat. Bank & T. Co v. Chicago, R.I.&. P.R. Co., 294 U. S. 648, 668, 669, 79 L. ed. 1110, 1124, 1125, 55 S. Ct. 595. And obviously, it is subject to the qualification that the common-law rule invoked shall be one not rejected by our ancestors as unsuited to their civil or political conditions. Cen. ex dem. Murray v. Hoboken Land & Improv. Co., 18 How. 272, 276, 277, 15 L. Ed. 372, 374, 375; Waring v. Clarke, 5 How. 441, 454-457, 12 L. ed. 226, 232, 233; Powell v. Alabama, supra (287 U. S. 60-65, 77 L. ed. 166-168, 53 S. Ct. 55, 84 A. L. R. 527).
"In the light of all that has now been said, it is evident that the restricted rules of the English law in respect of the freedom of the press in force when the Constitution was adopted were never accepted by the American colonists, and that by the First Amendment it was meant to preclude the national government, and by the Fourteenth Amendment to preclude the states, from adopting any form of previous restraint upon printed publications, or their circulation, including that which had theretofore been effected by these two well-known and odious methods."
And the Court continues: "This court had occasion in Near v. Minnesota, supra (283 U. S. 713 et seq., 75 L. ed. 1366, 51 S. Ct. 625), to discuss at some length the subject in its general aspect. T'he conclusion there stated is that the object of the constitutional provisions was to prevent previous restraints on publication; and the court was careful not to limit the protection of the right to any particular way of abridging it. Liberty of the press within the meaning of the constitutional provision, it was broadly said (p. 716), meant 'principally although not exclusively, immunity from previous restraints or (from) censorship.'
"Judge Cooley has laid down the test to be applied-'T'he evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.' 2 Cooley, Const. Lim. 8th ed. p. 886.
"It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government. But this is not an ordinary form of tax, but one single in kind, with a long history of hostile misuse against the freedom of the press.
"The predominant purpose of the grant of immunity here invoked was to preserve an untrammeled press as a vital source of public information. The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgment of the publicity afforded by a free press cannot be regarded

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otherwise than with grave concern. The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties. A free press stands as one of the great interpreters between the government and the people. T'o allow it to be fettered is to fetter ourselves.
"In view of the persistent search for new subjects of taxation, it is not without significance that, with the single exception of the Louisiana statute, so far as we can discover, no state during the one hundred fifty years of our national existence has undertaken to impose a tax like that now in question.
"The form in which the tax is imposed is in itself suspicious. It is not measured or limited by the volume of advertisements. It is measured alone by the extent of the circulation of the publication in which the advertisements are carried, with the plain purpose of penalizing the publishers and curtailing the circulation of a selected group of newspapers.
"2. Having reached the conclusion that the act imposing the tax in question is unconstitutional under the due process of law clause because it abridges the freedom of the press, we deem it unnecessary to consider the further ground assigned that it constitutes a denial of the equal protection of the laws."
Since the above cited decision of the Supreme Court of the United States in the Grosjean case, several State Supreme Courts have passed upon similar questions. I call attention to one of these cases.
In City of Tampa v. Tampa Times, 15 So. (2d) 612, the Supreme Court of Florida held an ordinance of the City of Tampa void under the provisions of the constitution of the United States protecting the freedom of the press. The City of Tampa had adopted an ordinance imposing an annual license tax on newspapers, graduating the tax on papers with less than 10,000 circulation $4{).00 per year; 10,000 to 30,000, $500.00 per year, and those in excess of 300,000, $700.00 per year. We quote from the decision of the Supreme Court of Florida:
"The case reaches this court on appeal from a decree holding the ordinance bad. The answer to a single question may dispose of the case; i.e., may a license tax be upheld against a newspaper, when assessed on a graduated scale as here stated, based on the volume of circulation?
"Appellees rest their case almost entirely on the authority of Grosjean v. American Press Co., 297 U. S. 233, 56 S. Ct. 444, 80 L. Ed. 660. Appellant seeks to distinguish the two cases and calls attention to the case of Giragi v. Moore, 49 Ariz. 74, 64 P.2d 819, 110 A. L. R. 320, wherein a license tax was upheld by the Arizona court. The Arizona statute was later attacked in the federal court resulting in the state court's decision being upheld. Arizona Pub. Co., v. O'Neil et al, D. C., 22 F. Supp. 117. The latter decision was affirmed by the Supreme Court of the United States. Arizona Publishing Co., v. O'Neil et al, 304 U. S. 543, 58 S. Ct. 950, 82 L. Ed. 1518. We are not impressed with the effect of the decisions based on the Arizona statute because the tax was not regulated by the volume of circulation, but instead was based upon the gross income of the paper.
"It would serve no useful purpose to cite other authorities inasmuch as we have concluded that the decision in this case is controlled by Grosjean vs. American Press Co., supra. We cannot say that the tax levied here is arbitrary, unreasonable or was actuated by anything other than good motive, however we rest our decision solely upon the proposition that any license tax based on volume of circulation and graduated by scale as is here presented is void as impairing the

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freedom of the press guaranteed by the First and Fourteenth Amendment of the United States Constitution."
It is significant and should be constantly borne in mind in considering the question of taxation of newspapers by states and municipalities that the Supreme Court of the United States in the Grosjean case above cited, said:
"It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government.''
While the Grosjean case holds that the owners of newspapers are not immune from any of the ordinary forms of taxation for the support of the Government, it does not even by implication hold that the State or any political subdivision with taxing authority may impose a regulatory license tax in contravention to the provisions of the First and Fourteenth Amendments of the United States Constitution.
Of course, you understand that the power of municipalites of the State of Georgia to license or to tax a business is derived solely from their respective charters granted by the General Assembly, and since most of these charters contain different language in the granting of powers of taxation and licensing, it would not be correct for me to say generally that municipalities cannot impose a license tax on newspapers. To properly determine whether a municipality is attempting to regulate and control a newspaper by the levying of a license tax it would be necessary to review each city ordinance in the light of its intent and actual application.
Therefore, in conclusion, specifically answering the three questions propounded, it is my opinion as to Question 1 that there is nothing in our State law which expressly or by intimation authorizes municipalities to levy a license tax on newspapers where such a levy will have the effect of regulation in contravention to the First and Fourteenth Amendments of the United States Constitution.
In answer to Question 2, while there is no statute dealing specifically with the question of prohibition against the levying of a license tax on newspapers by a municipality, if such a levy is determined to be regulatory in nature it would be in contravention to the First and Fourteenth Amendments of the United States Constitution and would therefore be null and void.
As to Question 3, the constitutional guarantee of a free press does prohibit a municipality from levying a regulatory license tax on newspapers where such a levy subjects the newspaper to operational and expression control by the municipalities.
I note again in your letter that you know of no municipality claiming at this time a right to license a newspaper in the regulatory sense of the word, and that your only concern is about the use of the term "license" in levying a tax as probably being misconstrued and eventually imposed in violation of the constitutional guarantee of a free press. You are imminently correct that if a branch of the Government has the right to license a newspaper, by the same token it would have the right to withhold or cancel a license.
It is to be hoped that municipal authorities may never assume the right to regulate the free press simply because the courts have held that they have the right to impose a license tax in the ordinary usage of that phrase as applied to taxation for the support of the Government. There is a vast difference between the imposition of a tax for the support of the Government, which is authorized by the Federal and State Constitutions as applied to newspapers, and the right
to impose a regulatory license upon this type of business.

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MUNICIPAL CORPORATIONS-Recorder (Unofficial) The Recorder of Police Court can only issue warrants in criminal offences within the corporate limits which involve crimes against the city.
June 13, 1950 Honorable Adie N. Durden Attorney at Law
'This will acknowledge receipt of your letter of June 1, 1950 with reference to whether or not the Recorder of your police court could issue warrants generally for your county in criminal cases.
In the case of Williams v. Sewell et al. 121 Ga. page 665, Headnote 2 which reads as follows:
"A municipal charter which imposes upon the mayor the duty of seeing that the ordinances of the town are faithfully executed, and confers upon him jurisdiction to try all persons charged with violating such ordinances, authorizes the mayor to issue a warrant for the arrest for trial of one charged with the violation of an ordinance; and this is true notwithstanding the charter does not in express terms authorize the mayor to issue a warrant for such purposes."
I think that under the Supreme Court ruling the Recorder would only have jurisdiction to issue warrants in criminal offences arising within the corporate limits of the City of Albany which involve crimes against the city. I think further that the Justices of Peace and other judicial officers authorized by law to issue warrants in criminal cases would have general jurisdiction in such matters.
MUNICIPAL CORPORATIONS-Vehicle Tax (Unofficial) Municipalities cannot compound an additional license fee upon motor vehicles.
April 11, 1950
Hon. S. W. Jackson, Jr. This will acknowledge receipt of your letter of April 4th addressed to the
Secretary of State, which has been forwarded to me for attention. In your letter, you desire information regarding the authorization of municipalities to levy a. vehicle tax.
The taxing power of a municipality is derived from its charter. In other words, city ordinances must be backed by a power contained in the city's charter.
The Legislature in 1927 passed a general law which states in part: "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 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." Code Section 68-312. In 1933 the City of Savannah passed an ordinance by virtue of its general charter power to tax businesses and which provides that the City of Savanaah shall have full power and authority to regulate the use of its streets for business purposes, and no pe1son, firm or corporation shall have the right to use the streets of the said city of Savannah for business purposes without having obtained the consent of the Mayor and Aldermen of said city. In an attempt to have this ordinance enjoined, one of the major attacks on

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it was that it violated the general law provided for in Code Section 68-312 which is quoted above.
The Supreme Court of Georgia in holding that the ordinance was sound, made the following technical differentiation. The Savannah ordinance imposing a tax upon the use of the streets for business purposes did not violate Code Section 68-312, which states:
"No additional license fee shall be charged by any municipality for the operation of a motor vehicle in the State."
This ordinance places no license or tax upon motor vehicles or the operation thereof. The Court further held that the ordinance was strictly a business or privilege tax, and not a tax upon the vehicles specified in the ordinance or their operation.
In other words, the Supreme Court is simply saying that the municipalities cannot compound an additional license fee upon motor vehicles, but if the City Charter provides the power and authority to regulate the use- of its streets for business purposes, it is permissible for the City to levy an additional business or privilege tax on motor vehicles.
In determining whether a municipality has the power to levy such a tax similar to that of the City of Savannah, it is imperative to study the city charter. It would appear to me that a satisfactory method of handling this question would be to point out the above information and then refer the matter to the City Attorney for his study.
PARDONS AND PAROLES-Restoration of Citizenship Upon full pardon, one is restored to his citizenship rights.
February 17, 1950 Honorable R. C. Coleman Joint Secretary State Examining Boards
OFFICIAL OPINION QUESTION:
Is a person's citizenship restored when receiving a full pardon after being convicted of a felony? ANSWER:
Article II, Section II, Paragraph I of the Constitution (Section 2-801 of the Code) provides as follows:
"The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned. 2nd. Idiots and insane persons."
Section 77-528 of the 1933 Annotated Code of Georgia reads: "Following the effective date of this Chapter (February 5, 1943), all pardons shall relieve from civil and political disabilities." Section 1 of the Policies, Rules and Regulations of the State Board of Pardons and Paroles, passed in compliance with the provisions of Section 77-525 of the Code, provides in part as follows: "Pardon will be granted only to that individual who can satisfactorily prove

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innocence of the crime for which he is serving time or has served time. Pardons issued under the law creating this Board restore civil rights and remove all disabilities resulting from erroneous convictions."
After citing these Code Sections and constitutional provision, Presiding Justice Atkinson, speaking for a unanimous court in the recent case of Hulvan v. Thornton, 205 Ga. 753, 757, said:
"A full pardon restores one to his citizenship rights." Similarly, in the case of Holloway v. Holloway, 126 Ga. 459, the court said: "The pardon restores the convict, so far as the public is concerned, to the position he occupied before the conviction. He is no longer infamous; he may vote, hold office, and perform other public functions."

PARDONS AND PAROLES-State Board of Pardons & Paroles Parolees are under the jurisdiction of the Board, subject to having their paroles revoked, until the maximum sentence has expired, and after a parole has been granted there can be no "good time" earned by the parolee.

Honorable Edward B. Everett, Chairman State Board of Pardons and Paroles

April 24, 1950

OFFICIAL OPINION FACTS:
The prisoner was sentenced to serve 4 years September 12, 1947. He was granted parole October 20, 1949. The parole order issued, which the inmate signed, shows that his maximum sentence expires April 5, 1951. It is the contention of the parolee that the maximum sentence should expire at an earlier date, since he should be given credit off his sentence as provided under the law creating the Department of Corrections. In granting parole all of our orders specify that the parolee is to be under parole supervision until the maximum sentence date. QUESTION:
Are parolees under the jurisdiction of the Board, subject to having their paroles revoked, up until the maximum sentence date, and should the good time statute apply to cases which have been granted parole?
AN~WER:
Section 77-380 of the Georgia Code Annotated Supplement provides that the State Board of Corrections shall formulate rules and regulations providing for extra good time allowance in addition to that now provided by law, to be awarded to deserving and exemplary prisoners. This Section provides for the regular statutory good time allowance and provides that the State Board of Corrections shall formulate rules and regulations for the allowance of additional good time to be awarded deserving prisoners, and it is my opinion that in determining when the minimum and maximum sentence ends that the good time earned by the prisoner as a statutory allowance and the good time earned as extra good time under the rules and regulations set up by the State Board of Corrections must be taken into consideration and the prisoner given credit for all the time under both the statutory allowance and under the extra good time allowance. However, it is my opinion that this time must be earned while the prisoner is actualy serving his sentence.
Section 77-515 of the Georgia Code Annotated Supplement, provides as follows:
"Any person who may be paroled shall be released on such terms and condi-

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tions as the Board shall prescribe. The Board shall diligently see that no peonage is allowed in the guise of parole relationship or supervision. 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 pardoned by the Board. In the event a parolee violates the terms of his parole, he shall be subject to rearrest and/or extradition for placement in the actual custody of the Board to be redelivered to any prison or public works camps of this State."
Section 77-520 of the Georgia Code Annotated Supplement provides, in part, as follows:
"No person who has been placed on parole shall be discharged therefrom 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."
In view of the above quoted Sections of the Code, it is my opinion that the good time statute incorporated in the law creating the Department of Corrections does not apply to cases which have been granted parole, and that the State Board of Pardons and Paroles shall have legal custody of the parolee until the expiration of the maximum term specified in the sentence less the amount of good time earned by the parolee while he was actually serving his sentence in a penal institution, and that the State Pardon and Parole Board is authorized to revoke the parole of a parolee upon violation of the parole at any time prior to the expiration of the maximum sentence less the good time earned as above set out. It is further my opinion that good time cannot be earned by a parolee during the time of his parole.

PARDONS AND PAROLES-State Board of Pardons and Paroles The Board in its discretion, has authority to grant a parole to run concurrently with paroles issued by other states or the Federal Government.

Honorable Edward B. Everett, Chairman State Board of Pardons and Paroles

July 25, 1950

QUESTION:

OFFICIAL OPINION

Does the Georgia Pardon and Parole Board in its discretion have authority to grant paroles to run concurrently with paroles issued by other states or the Federal Government when escapees from Georgia prisons are held in custody by other states or the Federal Government as fugitives from justice?

ANSWER: In an opinion to you as Chairman of the State Board of Pardons and Paroles,

dated August 11, 1944, Attorney General T. Grady Head ruled as follows on the identical point:

"It is my opinion that the Pardon and Parole Board does not have any jurisdiction over a prisoner who has escaped from the works camps of this state and gone to another state until he is actually returned to a jail or public works camp \n this state."
I concur with this ruling, but it must be accepted as a general rule subject to the discretionary power of the Board to take whatever action is necessary to give practical and workable expression to the purpose and spirit of the law in its

entirety. In fact, Section 28 clearly discloses the authority for such an exception as expressed by the General Assembly as follows:

"The law shall be liberally construed so that its purpose may be achieved."

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The purpose of the law is to be construed in favor of rehabilitation of a prisoner as against perpetual and hopeless imprisonment. For example: In a case in which an escapee from a Georgia prison served a prison sentence in the asylum state for 18 or 20 years, and the parole authorities of that state decide that he is entitled to a parole, it would indeed defeat the purpose of our law to compel such a prisoner to return to Georgia for the purpose of serving out the balance of a long term under his conviction here simply because the asylum state authorities hold a detainer. The opinion of Attorney General Head is a strict construction of the jurisdiction question under the Code Section 202 of the Georgia Code of 1933 to which I feel an exception should be made if, in the discretion of the Georgia Pardon and Parole Board, the prisoner has paid his debt to society and is a fit subject for complete rehabilitation.
It is therefore my firm opinion that whenever an escaped prisoner from Georgia is held in custody by the prison authorities of another state or the Federal Government, and the proper authorities of the other state or the Federal Government grants him a parole, the Pardon and Parole Board of Georgia in its discretion has authority to grant a parole to such prisoner to run concurrently with the parole issued by the other state or Federal Government.
Again may I call your attention to the fact that my conclusion of law as applied to the subject case is an exception to the general rule as defined by former Attorney General Head.
PARDONS AND PAROLES-State Board of Pardons and Paroles State Pardon and Parole Board would not be responsible for paying arresting and jail fees unless the parolee is committed by a member of the Board or its authorized agent and where no warrant has been issued or authority given for the arrest by the Board, provided the Board takes charge of the prisoner within a reasonable time after being notified by the proper officer holding the prisoner.
October 11, 1950
Honorable Edward B. Everett, Chairman State Board of Pardons and Paroles
OFFICIAL OPINION FACTS:
Prisoner was granted a conditional release after completing his m1mmum sentence. Subsequent to his release he was arrested by Federal authorities for transporting untaxpaid liquor. After the disposition of the Federal charge he was placed in the county jail and the jailer notified the Board. The Board sent a transfer officer immediately, who brought the prisoner to Atlanta and he was returned to prison as a conditional release violator. No warrant was issued by the Board for the arrest of the prisoner.
QUESTION: Would the State Pardon and Parole Board be responsible for the payment of
arresting and jail fees ?
ANSWER: Georgia Code Ann. Supp. Section 77-518 provides: "77-518. Arrest of parolee violating terms of parole; baiL-If any member
of the Board shall have reasonable ground to believe that any parolee has lapsed into criminal ways, or has violated the terms and conditions of his parole in a material respect, such member may issue a warrant for the arrest of such parolee.

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Said warrant, if issued by a member of the Board, shall be returned before him, at which time he shall examine such parolee and admit him to bail conditioned for his appearance before the Board, or if he is not admitted to bail, commit him to jail pending a hearing before the Board, as herein provided. All officers authorized to serve criminal process and all peace officers of this State shall be authorized to execute said warrant. Any parole or probation supervisor, when he has reasonable ground to believe that a parolee has violated the terms or conditions of his parole in a material respect, shall notify the Board or some member thereof; and proceedings shall thereupon be had as provided herein. (Acts 1943, pp. 185, 192)."
Georgia Code Ann. Supp. Section 77-525 provides: "77-525. Power of Board to adopt rules and regulations.-The Board may adopt and promulgate rules and regulations, not inconsistent with the provisions of this Chapter, touching all matters herein dealt with, including, among others, the practice and procedure in matters pertaining to paroles, pardons, probations and remission of fines and forfeitures. (Acts 1943, pp. 185, 194)." Under the Section of the Code last quoted, the Pardon and Parole Board promulgated rules and regulations to carry out the provisions of Chapter 77-5 of the Code Supplement. Rule 10 of said rules and regulations provides, in part, as follows: "The State Board of Pardons and Paroles will not be responsible for paying jail fees unless the parolee is committted by a member of the Board or its authorized parole field supervisors." In view of the fact that there is no statute specifically providing that the Board be responsible for these fees when no warrant has been issued by the Board, and in view of the provision authorizing the Board to promulgate rules and regulations and under this authority the Board did include in their rules and regulations that the Board would not be responsible, it is my opinion that the State Board of Pardons and Paroles would not be responsible for paying arresting and jail fees unless the parole is committed by a member of the Board or its authorized agent, provided the Board takes charge of the prisoner within a reasonable time after being notified by the proper officer holding the prisoner.
PARDONS AND PAROLES-State Board of Pardons and Paroles 1. The Judge of the Superior Court is without authority to revoke a constitutional release granted by the Pardon and Parole Board. 2. There is no duty resting upon the Board of Corrections to confine a prisoner under a void order.
November 29, 1950
Honorable R. E. Warren, Director, State Board of Corrections
OFFICIAL OPINION FACTS:
The Sheriff of Emanuel County, Georgia, filed the following petition with the Judge of the Superior Court of Emanuel County, Georgia, setting up the following facts:
"First "That on the 13th day of October, 1948 Homer Douglas entered his plea of guilty in the Superior Court of Emanuel County, Georgia, on three separate charges of forgery, and said Homer Douglas was by the Court sentenced to serve a term of not less than two years minimum and not more than three years maxi-

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mum in the public works camp in the State of Georgia, the sentences to run concurrently thereby requiring the defendant to serve for a period of not less than two years minimum and not less than three years maximum for the violation of all three charges.
"Second "That the State Board of Pardons and Paroles ordered that said prisoner be conditionally released May 18, 1950, subject to the jurisdiction of the State Board of Pardons and Paroles and all the rules governing paroles or revocation thereof as set forth in Senate bill #5, approved February 5, 1943, until the expiration of the maximum sentence date, May 12, 1951, the conditions under which prisoner was released being incorporated in the order of release, paragraph three of said conditions being that the prisoner shall not use narcotic drugs or intoxicating beverages and shall not visit places where these drugs and beverages are sold, dispensed or used in any manner during the period of his parole sentence.
"Third "Petitioner is informed and believes that the said Homer Douglas, the defendant, on the 4th day of November, 1950, violated the terms of his parole sentence by being drunk and under the influence of intoxicating beverages on Green Street, a public street in the City of Swainsboro, Emanuel County, Georgia. "Your petitioner hereby presents the matter to the court for investigation. Should it develop that said defendant has violated his parole, petitioner prays that his parole sentence be revoked as by law provided.
"P. L. Youmans, Petitioner
"Georgia, Emanuel County. "Upon a hearing of the petition of P. L. Youmans, Sheriff of Emanuel County,
Georgia, to revoke the parole of Homer Douglas, sentenced on the 13th day of October, 1948, on three separate charges of forgery and sentenced to serve not less than two years minimum and not more than three years maximum in each of the three cases, the three sentences to be served concurrently and the said Homer Douglas having served the minimum sentence and being released on parole on May 18, 1950; it appears that the evidence produced in this case warrants the revocation of the parole against Homer Douglas. It is ordered that the parole sentence of Homer Douglas heretofore granted by the State Board of Pardon and Paroles on May 18, 1950, be and the same is hereby revoked, and the said Homer Douglas is hereby ordered to serve the maximum of his original sentence in a public works Camp of the State of Georgia.
"In open court this November 7, 1950. "R. N. Humphrey "Judge, Superior Court, "Emanuel County, Georgia.
"Georgia, Emanuel County. "Clerks, Office Superior Court, said County: I, J. L. Lewis, Clerk of said
court, do hereby certify that the above and foregoing is a true and correct copy of petition and order to revoke parole of Homer Douglas, as same appears of file and of record in this office. Witness my hand and seal of said court hereto affixed at Swainsboro, Georgia, this 8th day of November, 1950. (Seal)
Is/ J. L. Lewis "Clerk Superior Court, Emanuel Co. Ga.

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QUESTION:
1. Does the Superior Court Judge have authority to revoke constitutional release which has been granted by the State Board of Pardons and Paroles?
2. Would the State Board of Corrections be authorized to honor the order of the court which revoked the constitutional release of the defendant and confine the defendant in the penitentiary system to serve out the balance of his sentence?
ANSWER:
An Act to create the State Board of Pardons and Paroles, Ga. Laws 1943, 185, Section 11, provides as follows:
"The State Board of Pardons and Paroles shall have 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 in which 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. In all cases when the Governor has suspended the execution of a death sentence to enable the Board to consider and pass on same it shall be mandatory that said Board act within a period not exceeding 90 days from the date of the suspension order of the Governor. In all cases of clemency, pardons, and paroles, a majority vote of the members is sufficient for approval, except in cases involving capital punishment, and in such cases a unanimous vote of all members of the Board is necessary. Provided, however, if any member for any cause is unable to serve in any case involving capital punishment the Governor shall act as the third member of said Board and the action so taken in such instances shall be by unanimous vote. In the cases which the Board has the 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 Board shall also be charged with the duty of supervising all persons placed on parole; of determining violations thereof and of taking action with reference thereto; of making such investigations as may be necessary and of aiding parolees or probationers in securing employment. It shall be the duty of the Board personally to study those prisoners whose cases the Board has power to consider, who may be confined in 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. Provided, however, that the Board by an affirmative vote of two of its members shall have the power to commute a sentence of death to one of life imprisonment."
It is my opinion that the Pardon and Parole Board is vested with power and authority to pardon and parole prisoners who are serving in the penitentiary of this State and to issue orders to allow prisoners to serve their time outside the confines of the penitentiary, subject to such conditions as may be fixed by the Pardon and Parole Board, and that the Pardon and Parole Board alone may revoke such order. It is my opinion that the Judge of the Superior Court is without authority to revoke an order of the Pardon and Parole Board which places a prisoner on parole. It is further my opinion that such order of revocation would be void and of no effect.
It is my opinion that there is no duty resting upon the Board of Corrections to accept a prisoner and confine him in the penitentiary under a void order.

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PARENT AND CHILD-Minority (Unofficial) After a child reaches the age of 21 years, the father is relieved of any further obligation as to maintenance and support.
August 24, 1950
Mrs. Edith L. Thornton This will acknowledge receipt of your letter of August 21, 1950, requesting
the law as to how old a child must be in Georgia before he or she is no longet entitled by law to support from the father.
Code Section 74-104 of the Annotated Code of Georgia 1933, reads as follows: "The age of legal majority in this State is 21 years; until that age all persons are minors." The courts have held under the above quoted Code Section that this applies to both male and female alike.
Code Section 74-105 of the Annotated Code of Georgia 1933, reads as follows: "Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child." Under the last quoted Code Section the courts have held that upon said minor reaching the age of 21 years, the father is to be relieved of any further obligation as to maintenance and support of said child.
PEACE OFFICER'S ANNUITY AND BENEFIT FUND-Remittance Thereto (Unofficial)
1. The Collecting officer deducts the Peace Officer's Funds' money before any money is paid into the Fine and Forfeiture Fund. 2. Where a defendant is sentenced to pay the cost of a case, the money for the Peace Officer's Fund cannot be added as cost, but if the cost is $5.00 or more, then the Peace Officer's Fund gets $1.00 of it. 3. There is no provision for the payment into the Peace Officer's Fund on a proportionate basis when the fine is less than the total cost in the case.
March 10, 1950
Honorable W. T. Maddox Solicitor General, Rome Circuit
This will acknowledge receipt of your letter of March 3, 1950 with reference to House Bill No. 273 (Ga. Laws 1950, page 50) providing for a Peace Officers Annuity and Benefit Fund.
Your letter propounds the following questions: "1. Is a Solicitor General, whose duty it is to collect fines imposed in Superior Courts, authorized to withdraw from the fine and forfeiture fund the sum of $1.00 for each criminal case wherein a fine of at least $5.00 has been imposed, and pay such sum to the Treasurer of the Board of Commissioners of the Peace Officers Annuity and Benefit Fund of Georgia ? "2. In Criminal cases where a defendant is sentenced to pay the costs of the case, is the Solicitor General authorized to consider a $1.00 contribution to the Peace Officers Annuity and Benefit Fund as a part of the costs, and enforce its collection from such defendant? "3. In event payment of such sums is legal, is the Solicitor General required to pay the sum of $1.00 to the Peace Officers Annuity and Benefit Fund in all cases wherein the fine is $5.00 or more, or should such payment be on a proportionate

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basis in those instances where the amount of the fine is less than the total costs in the case?"
Section 10 of the Peace Officers Annuity and Benefit Act reads as follows:
"Section 10. That in all criminal and quasi-criminal cases for violating State statutes or municipal ordinances, tried in any court or tribunal in the State of Georgia, wherein a fine is collected in an amount of $5.00 or more for the violation of a State statute or city ordinance or wherein a bond is forfeited and the result of the forfeiture is a final disposition of the case the sum of $1.00 for each case so disposed of shall be paid to the Treasurer of the Board of Commissioners of the Peace Officers Annuity and Benefit Fund of Georgia on the first day of each month thereafter by the person or authorities collecting the same. It shall be the duty of the clerk or other authority collecting the said monies to keep accurate records of the amounts due the Board of Commissioners of the Peace Officers Annuity and Benefit Fund of Georgia so that the same may be audited at any time by any duly constituted authority. The sums remitted to the Treasurer of the Board of Commissioners under this provision shall be used as provided for elsewhere in this Act."
Under the foregoing section, $1.00 from every fine of $5.00 or more collected, and $1.00 from every forfeited bond, which .finally disposes of the case, is paid into the Annuity and Benefit Fund on the first day of each month thereafter by the person collecting the same. I construe this provision to provide that the collecting officer shall deduct the amount due the Peace Officers Annuity and Benefit Fund, of which he shall keep an accurate account, as provided in said section, before a compliance with Section 27-2902, which 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 constables in the particular case by which the funds for distribution were brought into court, shall have been allowed and paid."
In other words, the deduction is to be paid into the Peace Officers Annuity and Benefit Fund before any funds are paid into the Fines and Forfeiture Fund. The purpose of the Fine and Forfeiture Fund, as provided in Chapter 27-29 of the Code, is to pay insolvent costs. I do not construe Section 10 of the Act under consideration as being inconsistent with Section 27-2902.
I will now answer your questions in their respective order.
1. The collecting officer .deducts the amount authorized under Section 10 of the Peace Officers Annuity and Benefit Fund before any moneys arising from fines and forfeitures are paid into the Fine and Forfeiture Fund. The money so deducted is to be accurately recorded and transmitted to the Treasurer of the Board of Commissioners of the Peace Officers Annuity and Benefit Fund of Georgia, as provided by law.
2. A fine not specifically fixed by law is within the discretion of the Judge, and I find no law that would authorize the Solicitor to add to the cost the amount of $1.00 for the Peace Officers Annuity and Benefit Fund, where the Judge of the Court or tribunal fines the defendant the cost in a case. On the other hand, where a fine amounts to $5.00 or more, whether based on the cost in a case or not, the

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deduction shall be made for the Peace Officers Annuity and Benefit Fund, as provided by law.
3. Your question number 2 is answered above. However, I may add that there is no provision of law for the payment into the Peace Officers Annuity and Benefit Fund on a proportionate basis in those instances where the amount of the fine is less than the total cost in the case.

PEACE OFFICERS' ANNUITY AND BENEFIT FUND-Trustee Board of Commissioners of Peace Officers' Fund is a Trustee and not a State Agency.

Honorable Francis Allen, Secretary-Treasurer Peace Officers' Annuity and Benefit Fund

March 16, 1950

OFFICIAL OPINION QUESTION:
Is the Board of Commissioners of the Peace Officers' Fund a Trustee of the Fund or a State Agency?

ANSWER: I have given much thought and study to the provisions of the Act which was
approved February 1, 1950 (Ga. Laws 1950, page 50), and have reached the conclusion that the Board is not a State Agency. It is my opinion that this Board was set up in reality as a Board of Trustees for the purpose of administering the Peace Officers' Fund. This conclusion is substantiated by the language of Section 4 which reads as follows:
"The Board of Commissioners, as provided herein, shall have such control of the funds provided for in this Act, not inconsistent with the provisions of this Act and with general State laws. All funds received by the Board of Commis sioners shall be deposited in a special account to be known as the Peace Officers Annuity and Benefit Fund of Georgia. The said Board shall have authority to expend the funds in accordance with provisions of this act, and to invest any of the funds so received in any act, and to invest any of the funds so received in any investments, which are legal investments, for trust funds under the laws of the State of Georgia."
This Section seems to clearly indicate that it was the intent of the General Assembly that the Board of Commissioners act as trustees of this fund and that it did not intend that the Board be considered a State Agency.

PENSIONS-Confederate Widows Continuous residence in Georgia from 1920 or 1937 not necessary to be eligible for Confederate widow's pension if recipient is otherwise qualified.
February 7, 1950 Miss Lillian Henderson, Director Confederate Pension Record Department
OFFICIAL OPINION FACTS:
"Mrs. Josephine Moore Bethune White has filed an application for a Confederate widow's pension in Baldwin County, Georgia. Mrs. White is eighty-one years of age.
"In reply to question 2, in her application, Mrs. White states that she 'has

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been, continuously, a bona fide resident of the State of Georgia all her life except ten years resident of La.'
"Mrs. White states that she resided in Alexandria, La., after her marriage January 25, 1933, until the death of her husband, Dr. James A. White, which occurred on May 25, 1944.''
QUESTION:
Must a Confederate widow show continuous residence in Georgia from 1920 (or from 1937), to establish her eligibility for a Confederate widow's pension?
ANSWER:
Attached to your request is a copy of an opinion rendered September 29, 1938, by Honorable Ellis G. Arnall, then Assistant Attorney General, wherein it was held "that a Confederate widow must have been a resident of this State on January 1, 1920 (all other necessary qualifications being also met), in order for her to be entitled to a pension.''
Since this opinion was rendered, the new 1945 Constitution of Georgia has been adopted and ratified by the people.
Under the Constitution of Georgia of 1877, which was in effect prior to the 1945 Constitution, Article VII, Section 1, Paragraph 1, provided in part as follows:
"Article VII, Section 1, Paragraph 1. Taxation, how and for what purposes exercised. The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes, only:
"To make provisions for the payment of pensions to any ex-Confederate soldier, residing in this State January 1st, 1920, who enlisted in the military service of the Confederate States during the Civil War between the States of the United States, and who performed actual military service in the armies of the Confederate States or of the organized militia of this State and was honorably discharged therefrom; and to widows now resident of this State, or ex-Confederate soldiers. who enlisted in the military service of the Confederate States and who performed actual service in the armies of the Confederate States or of the organized militia of this State, who died in said military service, or were honorably discharged therefrom, who were married prior to January 1st, 1881. No widow of a soldier killed during the war shall be deprived of her pension by reason of having subsequently married another veteran who is dead, unless she is receiving pension on account of being the widow of such second husband. Any soldier doing service in the Confederate army whether he belonged to the Confederate army or whether he belonged to the militia of any Confederate State and served with the Confederate army, shall be eligible to draw a pension."
In adopting the 1945 Constitution of Georgia, the entire subparagraph above cited was stricken in its entirety, and the following is now the constitutional provision applicable to the question under consideration:
"Article VII, Section 2, Paragraph 1. Taxation, how and for what purposes exercised. The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only:
"5. To make provision for the payment of pensions to ex-Confederate soldiers and to the widows of Confederate soldiers who were married to such soldiers prior to January 1, 1920, and who are unmarried."
Under the 1877 Constitution, the payment of pensions to ex-Confederate soldiers was restricted to those residing in this State on January 1, 1920, and to widows of ex-Confederate soldiers "now residents of this State.'' These two restrictions are not contained in the 1945 Constitution.
Section 78-204 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides:

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"78-204. Widows entitled to pensions.-Every widow who by proper proof shows that she is a bona fide resident citizen of this State, and that she is the widow of a soldier who enlisted and served in the military service of the Confederate States, or in a Georgia regiment or company, or under a Georgia command, or in the organized militia of the State of Georgia, during the Civil War, who died in said service or was honorably discharged therefrom, shall be entitled to receive a pension in accordance with the provisions of section 78-216: Provided, that this section shall apply only to such widows as were married to such husbands prior to the first day of January, 1920, and who are unmarried."
Section 78-216 of the 1933 Annotated Code of Georgia, Pocket Supplement, as amended by the Acts of 1949 (Georgia Laws 1949, page 1118) provides as follows:
"78-216. Amount of pensions and time of payment.-Confederate soldiers shall be paid a monthly pension of seventy-five ($75.00) per month, on the first day of each month. Widows of Confederate soldiers shall be paid a monthly pension of seventy-five ($75.00) dollars per month, payable on the first day of each month. The several members eligible for this pension, but who are inmates of the Confederate Soldiers' Home in Atlanta are hereby given five ($5.00) dollars per month for incidental expenses."
It is my opinion that a widow of a soldier who enlisted and served in the military service of the Confederate States, or in a Georgia regiment or company, or under a Georgia command, or in the organized militia of the State of Georgia during the Civil War, who died in said service or was honorably discharged therefrom, shall be entitled to receive a pension in accordance with the provisions of Section 78-216 of the Code of Georgia upon proper proof that she is a bona fide resident citizen of this State, and such widow was married to such husband prior to the first day of January, 1920, and who is unmarried, and that it is not necessary for such person to have had a continuous residence in Georgia from 1920 or 1937.
PENSIONS-Confederate Widows Before the qualifying date to receive a pension can be changed, there must be a constitutional amendment.
March 2, 1950
Miss Lillian Henderson, Director Department of Confederate Pensions and Records
OFFICIAL OPINION FACTS:
At the recent session of the Legislature, House Bill #485 was passed. This Act is entitled, "An Act to amend an Act approved December 21, 1938, (Ga. L. 1938, pp. 304-305) the same being entitled 'Widows of Veterans-Section 78-204' by providing for pensions to be paid to widows who were married prior to the first day of January, 1925, rather than January 1, 1920; to repeal conflicting laws; and for other purposes."
QUESTION: Can this qualification date be changed by Statute rather than by constitutional
amendment?
ANSWER: House Bill No. 485, in effect, amends Section 78-204 of the Code as it appears

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in the Pocket Part of the Annotated Code. The provision of Section 78-204 with which we are concerned was codified from Georgia Laws 1937-38, Extra Session, page 304. This Act merely substituted the year 1920 for the year 1881. House Bill No. 485 merely substitutes the year 1925 for the year 1920.
Article VII, Section II, Paragraph I of the 1945 Constitution (Code Section 2-5501) reads in part as follows:
"The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only:
"5. To make provision for the payment of pensions to ex-Confederate soldiers and to the widows of Confederate soldiers who were married to such soldiers prior to January 1, 1920, and who are unmarried."
Before the year 1937, the marriage date was 1881. In 1937 a constitutional amendment was passed and ratified which changed that date to the present date of 1920. This 1920 date was carried over into the Constitution of 1945. The Act of 1938, which amended Section 78-204 of the Code, was merely an enabling Act to carry out the provisions of the 1937 constitutional amendment.
House Bill No. 485 merely amends the Code Section and there was no constitutional amendment passed at this session of the General Assembly which would change the 1920 date as it appears in the Constitution. Therefore, I am of the opinion that House Bill No. 485 is ineffectual and does not change the year 1920 to the year 1925. I am of the further opinion that before this date can be changed, it will be necessary for a constitutional amendment to be passed by the General Assembly and be ratified by the people as provided by law.
PERSONS-Majority (Unofficial) The age of legal majority in this State is 21 years, and all persons are minors until reaching that age.
November 28, 1950 Mr. E. A. Braham
I am pleased to acknowledge receipt of your letter of November 22nd asking if a recent Georgia law provided that a male reaches majority at 18 years of age, or if the legal age still remains at 21 years.
Section 74-104 of the Georgia Code of 1933 provides that "the age of legal majority in this State is 21 years; until that age all persons are minors." However, since 1945 the State of Georgia has permitted 18 year olds to vote. Article II, Section I, Paragraph II of the Constitution (2-702) reads 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 entitled to register and vote in 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."

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PROFESSIONS, BUSINESSES AND TRADES-Accountants A Certified Public Accountant may rtot sign a report for a firm which is practicing as "Certified Public Accountants" where the principals are not certified, without being guilty of a misdemeanor. All members of the firm shall also be guilty of a misdemeanor.
February 20, 1950
Honorable R.. C. Coleman Joint-Secretary State Examining Boards
OFFICIAL OPINION QUESTION:
May a Certified Public Accountant who is a member of a firm which is practicing as "Certified Public Accountants" sign his name as a Certified Public Accountant to a report of the firm where the principals are not Certified Public Accountants? ANSWER:
The State Board of Accountancy was created under Chapter 84-2 of the Code of Georgia of 1933, and provides for the qualifications, examination, certification, registration, and licensing of public accountants. Section 84-213 provides as follows:
"It shall be unlawful: For any person other than a certified public accountant, certified and registered as provided by this Chapter, to practice as a certified public accountant, or hold himself out as, or assume to practice as a certified public accountant, or use the term 'Certified Public Accountant,' or the abbreviation 'C. P. A.' or otherwise employ any designation, as a member of a firm or otherwise, calculated to deceive the public or convey the impression that such person is a certified public accountant; for any member of a firm or association to announce or state in writing or printing, by advertisement or otherwise, that such firm is practicing as 'Certified Public Accountants' unless all members of the firm are holders of valid and unrevoked certificates and are certified public accountants within the meaning of this Chapter; for any person to practice as a certified public accountant if his certificate has been revoked, or during any suspension thereof, or without renewing his registration card annually, as provided by this Chapter; for any person to buy, sell, give or obtain a certificate as a certified public accountant in any manner other than that provided by this Chapter, or to practice or attempt to practice under any such certificate obtained other than that provided for in this Chapter; for any certified public accountant to knowingly certify to any false or fraudulent report, certificate, exhibit, schedule or statement.''
Penalties for a violation of the law are provided under Section 84-9902, as follows:
"If any person shall hold himself out as having received a certificate provided for in Chapter 84-2 on the subject of certified public accountants, or shall assume to practice thereunder as a certified public accountant, or use the initials 'C. P. A.' without having received such certificate or if the same shall have been revoked he shall be guilty of a misdemeanor, and shall be sentenced to pay not exceeding $500 or less than $200. If any person, firm, corporation or association shall hold himself out as having been registered as a public accountant as provided for in section 84-215, or shall assume to practice thereunder as a registered accountant without having been so registered by the Board of Accountancy of this State, or if said registration shall have been revoked, he shall be guilty of a misdemeanor and sentenced to pay not exceeding $500 or less than $200. Any

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person who shall violate any other provision of Chapter 84-2 shall be guilty of a misdemeanor, and shall on conviction be punished as provided by law."
All who procure, counsel, command, aid or abet the commission of a misdemeanor are regarded by law as principal offenders. The law is clear that it shall be unlawful for any member of a firm or association to announce or state in writing or printing, by advertisement or otherwise, that such firm is practicing as "Certified Public Accountants" unless all members of the firm are holders of valid unrevoked certificates and are certified public accountants within the meaning of the law. The law further provides that any person who shall violate any provision of Chapter 84-2 shall be guilty of a misdemeanor, and shall on conviction be punished as provided by law.
It is, therefore, my opinion that a signature of a Certified Public Accountant to a report for a firm where the principals are not certified, or where one is certified and another is not, would be guilty of a misdemeanor, and all members of the firm and the certified public accountant signing the report of the firm would be equally guilty under the law.
PROFESSIONS, BUSINESSES AND TRADES-Accountants (Unofficial) A person who makes income tax returns for another for a fee is not practicing accounting as contemplated by law, and is not subject to a professional tax.
January 3, 1950
Honorable W. Moss Harrison This will acknowledge receipt of your letter of December 22, 1949, with refer-
ence to the lawful or unlawful practice of Accountants in Georgia, and particularly as relates to the preparation of tax returns.
Some time ago there was propounded to the Law Department the following questions:
1. Are accountants or persons preparing income tax returns for individuals for a charge or fee liable for a professional tax as an accountant? In other words, are such persons practicing accounting?
2. If such person is an accountant, is he required to register with any State Officer for the legal conduct of such practice ?
For the consideration of the Societies of Accountants, in which you are an officer and a member, I am glad to quote to you the unofficial memorandum furnished the Director of the License Tax Unit of the State Revenue Department in response to the above questions, as follows:
"Professions as named and taxable under Georgia Law (Section 92-1909) include 'public accountants, charging for their services as such, shall pay $15.' Such tax to be collected as other license or occupation taxes are collected.
"It shall be unlawful for any person to practice any profession upon which a special tax is levied by the State, and charge for the same, without paying the special tax. If a nulla bona entry has, by proper authority, been entered upon an execution issued by the tax collector of any county against any person for said special tax, and such person has thereafter engaged in the practice of any or all of said professions and charged for the same, he shall be guilty of a misdemeanor.
Code Sec. 84-9901.
"Section 92-1909 (Paragraph 3 of the General Tax Act of 1935) is far reaching and all embracing as relates to all of the professions named, except account-

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ants, the law naming only 'public accountants'. And a public accountant is one that holds himself out to the public as such and 'charges for their services as an accountant.'
"A person could be a tax expert, understand the legal phases of making income tax returns or be a mathematician, capable of making income tax returns, without being an accountant. Georgia law recognizes the relationship between one skilled and familiar with tax returns, and the difference between such knowledge, and accounting. In Section 84-507 (Qualifications for applicants for C.P.A.) provides that an applicant must have three years continuous experience in public accounting, immediately preceding the date of issuance of certificate, or the Board may, in its discretion, accept four years continuous practice or employment as a :revenue agent in the Internal Revenue Department of the United States in the examination of income tax returns, or four years continuous employment by this State in the examination of financial records, in lieu of two years continuous experience in public accounting.
"Hon. Ellis Arnall, as Attorney General, recognized this difference in an opinion dated May 28, 1940 (Opinions of Attorney General 1937-41, p. 436), in the last paragraph when he said:
"In response to paragraph 3 of your letter, it is my opinion that if an individual applicant has had four years continuous practice or employment as a revenue agent in the Internal Revenue Department of the United States in the examination of income tax returns, or four years continuous employment by this State in the examination of financial records which has been accepted by the Board in lieu of two years experience in public accounting, and such applicant has also given evidence of sufficient technical education in accounting which has been accepted by the Board in lieu of one year of public accounting experience, he would have met the requirements. . . .'
"Balentine's Law Dictionary defines 'Income Tax :return' as: 'An annual statement setting out the sources and amount of income in sufficient detail to enable the taxing authorities to see that it is correctly computed and to verify the accuracy.'' "A Certified Public Accountant is defined as:
'A term applied to trained accountants who examine the books of accounts of corporations and others and report upon them.'
Bovier's L. D. 'Accountant is one who is versed in accounts. A person who is skilled in, keeps, or adjusts accounts.'
Balentine's L. D. Bovier's L. D.
"It is not necessary for a person to have more than a statement from the one making an income tax return in order to make a return acceptable to the taxing authorities and a person engaged in assisting others in making such returns is by no means employed as an accountant, but merely to do the figuring, make the proper deductions, and otherwise correctly make out the forms in accordance with the statements furnished. It therefore appears that a person preparing income tax returns for individuals for a charge is not practicing accounting, as contemplated by law, and are not subject to a professional tax.
"If a person preparing income tax returns for individuals, and charging a fee for such service, could be classified as an accountant it would naturally follow that such person would be a 'public accountant' as would come within the named professions and would be subject to the professional tax imposed as provided by law. Under an opinion rendered by Judge Yeomans, as Attorney General, an

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accountant, in no event, would have to register with the Ordinary as provided for businesses and occupations, etc., under the General Tax Act of 1935.
Opinions of Attorney General 1934-36, p. 35. "Hon. Ellis Arnall in referring to this opinion and answering a question as to 'whether or not professional men were required to register with Ordinary' said: 'I have made it a custom to follow opinions rendered by Judge Yeomans where they are upon the same subject matter, are not clearly erroneous, and the law with respect to the question has not been changed by the Legislature or declared invalid by the courts.'
Opinions of Attorney General 1939-41, p. 542. "However, under an Act approved May 19, 1943 (Acts 1943, p. 363), and within six months thereafter, any person engaged in public accounting and who maintains an office for such purposes in Georgia on the date of the enactment of this Act shall apply for a registration under the State Board of Accountancy, and upon the production of satisfactory evidence, etc., the Board shall register such applicant; providing for an annual registration fee, etc."
PROFESSIONS, BUSINESSES AND TRADES-Chiropractics The Board may not examine an applicant who has not completed the required 36 months of schooling.
September 12, 1950 Dr. R. C. Coleman, Joint Secretary State Examining Boards Department of State
OFFICIAL OPINION QUESTION:
Does the State Board of Chiropractic Examiners have the right to give an examination to an applicant who lacks less than 30 days attending a Chiropractic College the required 36 months and withhold the issuance of the license until the applicant furnishes a diploma, showing he has completed the required 36 months? ANSWER:
Code Section 84-507 of the Georgia Annotated Code of 1933. Pocket Supplement, deals with the question at hand. Said Code Section reads as follows:
"Any person wishing the right to practice chiropractic shall make written application to said Board of Chiropractic Examiners through the Joint-Secretary, State Examining Boards, in such form as may be adopted and directed by the Board. 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, and said applicant shall have had literary training equaling as much as a regular high school course, of 14 Carnegie units, which school training shall be evidenced by the certificate of any recognized State educational official, that the Governor may appoint, for which certificate the applicant shall pay said official a fee of $2, and no applicant shall appear before the Board or be examined without such certificate. Application shall be in writing and shall be signed by the applicant in his own handwriting, and shall be sworn to before some officer authorized under the laws to administer oaths, and shall recite the history of the applicant's educational qualifications, how long he has studied chiropractic, what collateral branches, if any, he has studied, the length of time he has engaged in clinical practice, with proof thereof in the form of diplomas, certificates, etc., and shall accompany said application with satisfactory evidence of good character and reputation. There shall be paid

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to the Joint-Secretary by each applicant for a license, a fee of $25, which shall accompany said application. A like fee shall be paid for any subsequent application."
From a reading of the above Code Section, it is clear that any person wishing the right to practice chiropractic shall make written application to said Board of Chiropractic Examiners through the Joint-Secretary, State Examining Boards. The above Code Section provides that 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.
So, it is my opinion that before any person could become an applicant for
chiropractic examinations, it would be necessary that he comply with the above
Code Section and the Board would be without authority to give an examination to such person before the applicant had complied with the above section of law.
PROFESSIONS, BUSINESSES AND TRADES-Naturopathy A naturopathic license does not authorize the prescribing of medicine or writing of prescriptions.
December 12, 1950 Doctor R. C. Coleman, Joint Secretary State Examining Boards
OFFICIAL OPINION QUESTION:
Is the holder of a naturopathic license permitted under the law to prescribe medicine and to write prescriptions? ANSWER:
Georgia Laws 1950, p. 168, authorizing the practice of Naturopathy, provides in Section 10 as follows:
"For the purpose of this Act, naturopathy and natureopathy shall be construed as synonymous terms, and the practice of naturopathy or natureopathy, is hereby defined as that philosophy and system of the healing art embracing prevention, diagnosis, and treatment of human ills and functions by the use of several properties of air, light, heat, cold, water, manipulation, with the use of such substances, nutritional as are naturally found in and required by the body, excluding drugs, surgery, x-ray, and radium therapy, and the use of x-ray equipment."
Section 16 of the same Act provides as follows: "Nothing in this Act shall be construed to be authority for any naturopath, licensed hereunder, to practice medicine as defined by the laws regulating the practice of medicine in this State, surgery, dentistry, osteopathy, chiropractic, Christian Science, or any other treatment or system of treatment authorized for by law, nor shall the provisions of this Act in any way or manner apply to or affect the practice of medicine, surgery, osteopathy, Christian Science, or any other treatment or system of treatment authorized and provided for by law for the prevention of human ills. "Nothing in this Act shall be construed to allow, permit or license those practicing naturopathy in the State of Georgia to perform surgery of any kind or description, or to prescribe any drugs, medicine, narcotics or other remedies whereby a prescription is required. Should any member of this profession, upon trial and conviction of the violation of any of the terms of this Act, and especially the prohibitions named therein, the practitioner shall immediately have his license revoked and be punished as for a misdemeanor.

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"Those practicing naturopathy in this State shall not be deemed or designated as doctors or physicians, except as provided herein."
It is my opinion that the Act authorizing the practice of naturopathy does not authorize a person holding a naturopathic license to prescribe medicine or write prescriptions, brlt the Act clearly and distinctly prohibits the same.
PROFESSIONS, BUSINESSES AND TRADES-Osteopaths There is no law prohibiting an osteopathic surgeon from completing the necessary personal data for a death certificate and then presenting it to the county coroner for acceptance and execution.
May 12, 1950
Dr. R. C. Coleman Joint Secretary State Examining Boards
OFFICIAL OPINION QUESTION:
"Is there any legal objection to osteopathic surgeons (who are last in attendance upon persons who die) completing the personal data upon the prescribed death certificates and thereupon presenting the same to the county coroner for the latter's execution?" ANSWER:
By referring to Section 16 of the Vital Statistics Act of 1945 (Ga. Laws 1945, pp. 236-248) the following language will be found:
"Section 16. Death Certificates. " (1) The person in charge of interment shall file, with the local registrar of the district in which the death occurred or the body was found, a certificate of death within the time prescribed by the Board. "(2) In preparing a certificate of death, the person in charge of interment shall obtain and enter on the certificate the personal data required by the Board from the persons best qualified to supply them. He shall present the certificate of death to the physician last in attendance upon the deceased or to the coroner having jurisdiction who shall thereupon certify the cause of death according to his best knowledge and belief. " (4) Deaths from criminal violence, or by a casualty, or by suicide, or suddenly while in apparent health, or when unattended by a physician, or in any suspicious or unusual manner, shall be reported forthwith to the county coroner, who shall execute a certificate of death upon a form prescribed by the Board." These provisions clearly indicate that the law provides a manner and method by which death certificates can be completed in those cases of deaths of persons who are unattended by a physician as defined in Section 2 of the Vital Statistics Act of 1945. This prescribed method is that such certificate shall be executed by the County Coroner on a form prescribed by the State Board of Health. In view of the above provisions and while there is no affirmative authority contained in such Act permitting osteopathic surgeons to execute such certificates, it is my opinion that there is no prohibiting provision in the Act nor objection to an osteopathic surgeon furnishing facts known to him by filling in such facts in a death certificate as required by the State Board of Health and then forthwith presenting such certificate to the County Coroner for the latter's acceptance and execution.

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PROFESSIONS, BUSINESSES AND TRADES-Pharmacy Concerns engaged in the business of selling drugs, chemicals or medicines in the original unbroken packages at wholesale are not required to have a licensed pharmacist at their place of business.
March 16, 1950 Honorable P. D. Horkan Chief Drug Inspector Georgia State Board of Pharmacy
OFFICIAL OPINION FACTS:
"We have a rather peculiar situation existing in Augusta, Georgia, namely: McKesson and Robbins, Inc., who operate a wholesale drug concern. This concern does not package, re-bottle, concoct or dispense any drugs, chemicals or medicines. All items are sold in the original, unbroken packages." QUESTION:
Is this concern required by the Pharmacy License Law of Georgia to employ a licensed and registered pharmacist? ANSWER:
Section 84-1301 of the Georgia Code of 1933 defines a drug store as follows: "The term 'drug store' or 'pharmacy', whenever used in this Chapter, shall be construed to mean a place where drugs, medicines, or poisons are dispensed, compounded, or sold at retail under the direction and direct supervision of a person who is duly licensed and registered by the Georgia Board of Pharmacy to practice in Georgia." Section 42-710 of the Georgia Code of 1933 is as follows: "Sales excepted from operation of law.-The provisions of this law shall not apply to the sale at wholesale by recognized drug jobbers or wholesalers and drug manufacturers to pharmacists or drug stores or to physicians qualified to practice their profession according to the law, nor to the sale by pharmacists in drug stores to one another. The provisions of this law shall apply to the sale by any manufacturer, wholesaler, or retailer to any person, firm, or corporation other than those legally qualified and authorized to purchase and hold the same for resale in this State." Under the above stated facts and quoted sections of the law, it is my opinion that McKesson and Robbins, Inc., operating a wholesale drug concern, would not be required under the law to have a regular licensed pharmacist at their place of business.
PROFESSIONS, BUSINESSES AND TRADES-Pharmacy A person upon failure to pass the first pharmacist examination may take another one. May 22, 1950
Honorable R. C. Coleman Joint Secretary State Examining Boards
OFFICIAL OPINION QUESTION:
Can an applicant for examination before the State Board of Pharmacy who graduated from the Southern College of Pharmacy in 1912, qualified and took the examination at that time but failed to pass, be re-examined by the Board under the present law, which was amended in 1933 ?

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ANSWER: Section 84-1313 of the 1933 Code of Georgia, Annotated, which deals with
qualifications of applicants for registration reads as follows: "Each applicant for registration as a pharmacist shall not be less than 21
years of age, and ilhall be a graduate of a generally recognized school or college of pharmacy, and in addition shall have had 12 months of practical experience in a drug store or place where physician's prescriptions are compounded by a licensed pharmacist registered under the laws of the State of his abode: Provided, however, that this section shall not apply to those persons, bonafide citizens of Georgia, who on March 8, 1933, were actually employed in a place of business operated by a licensed pharmacist engaged in the compounding and filling of physicians' prescriptions; and who, within six months after March 8, 1933, shall file with the State Drug Inspector notice of their intention t apply for examination under this exemption; and who, within three years, present themselves for examination; and who file with the Board of Pharmacy evidence of graduation from an accredited high school, and of having had at least three years of practical experience."
Section 84-1322 prohibits the issuing of licenses to aliens and reads as follows: "The State Board of Pharmacy Examiners shall not issue a license to practice pharmacy in this state to any person who was not born or naturalized in the United States or who is not a citizen of the United States." Under Code Section 84-1313 above quoted, it is my opinion that a person who graduated from the Southern College of Pharmacy in 1912 and who took the examination before the Board of Pharmacy but failed to pass would be entitled to be allowed upon his application to have another examination and if he passed the examination he would be entitled to a license. This opinion is based upon the assumption that the applicant was twenty-one years of age and that the Southern College of Pharmacy is a recognized college of pharmacy, and further that the applicant has had twelve months of practical experience in a drug store or place where physicians' prescriptions are compounded by a licensed pharmacist registered under the laws of the State of his abode, and further assuming that the applicant is a citizen of the United States. The last part of Section 84-1313 which provides for the licensing of a citizen of this State who on March 8, 1933 was actually employed in a place of business operated by a licensed pharmacist engaged in the compounding and filling of physician's prescriptions, and who within six months after March 8, 1933 filed with the State Drug Inspector notice of his intention to apply for examination, and who within three years presented himself for examination, is not involved in the question presented in your letter.
PROFESSIONS, BUSINESSES AND TRADES-Physiotherapy (Unofficial) It would be unlawful for any person to practice physiotherapy in this State without first obtaining a license from the Board of Naturopathic Examiners.
September 22, 1950 Honorable J. Paxson Amis Attorney at Law
I am in receipt of your letter of August 22, in which you ask if a person may practice physiotherapy in the State of Georgia without first obtaining a license.
Section 10 of an Act entitled "Naturopathy-Practice", approved February 15, 1950 (Ga. Laws 1950, pp. 168-173) reads as follows:
"For the purpose of this Act, naturopathy and natureopathy shall be con-

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strued as synonymous terms, and the practice of naturopathy or natureopathy, is hereby defined as that philosophy and system of the healing art embracing prevention, diagnosis, and treatment of human ills and functions by the use of several properties of air, light, heat, cold, water, manipulation, with the use of such substances, nutritional as are naturally found in and required by the body, excluding drugs, surgery, x-ray, and radium therapy, and the use of x-ray equipment."
Section 14 of this Act provides: "That any person who shall practice or attempt to practice naturopathy or any of its branches, or who shall hold himself out in any manner as a naturopathic manipulator or practitioner, without first obtaining a license as provided in this Act, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished as for a misdemeanor." Gould's Medical Dictionary defines physiotherapy as, "The use of the forces of nature in the treatment of disease; for example heat, light, electricity, exercise, air, water," and naturopathy as, "A school of healing which employs air, light, water, vibration, heat, electricity, psychotherapy, dietetics and massage. It excludes the use of drugs, surgery, x-ray or radium." Dorland's American Illustrated Medical Dictionary states that the word "physiotherapy" comes from the Greek word meaning "nature" and is the treatment of disease by physical means such as heat, massage, etc. Dorland defines naturopathy as a drugless system of therapy by the use of physical forces such as air, light, water, heat, massage, etc. In Healing and Occult Science Dr. J. Croiset van Uchelen states on page 59 that: "The two principal forms of healing using material means, as practiced today, are classified as the allopathic or medical school, and the drugless or naturopathic school; with the various branches within these two groups. "Their main distinction is that the naturopathic school does not use drugs or poisons, whether in the form of herbal 'preparates,' animal serums or vaccines, or chemical laboratory products, as does medicine."
Thus, it appears from these definitions that physiotherapy is an allied branch of naturopathy within the meaning of Sections 10 and 14 of the Naturopathy Act, and it would be unlawful for any person to practice physiotherapy in this State without first obtaining a license from the Board of Naturopathic Examiners.
PROFESSIONS, BUSINESSES AND TRADES-Real Estate Commission The immunity granted to the Commission does not extend to the swearing out of warrants.
March 9, 1950
Honorable R. C. Coleman Joint Secretary Georgia Real Estate Commission
OFFICIAL OPINION FACTS:
"In the opinion of the Real Estate Commission it becomes necessary at times to obtain warrants for people who the Commission believes after investigation to be violating the law.

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"The law provides immunity and a question has been raised as to how far this immunity will be covered to its employees. QUESTION:
"After investigation and the Commission finds that the party is violating the law and a warrant is obtained by a designated employee of the Commission would that employee have immunity in suit filed against him?" ANSWER:
In the second paragraph of your letter, you state that the law provides immunity and the question has been raised as to how far this immunity will be covered to its employees. I presume that you have in mind the last paragraph of Section 84-1420 of the Georgia Code of 1933, as amended by the Act of 1949. The last paragraph of said section reads as follows:
"The Georgia Real Estate Commission is declared to be a judicial body and the members of its employees thereof are granted immunity from civil liability when acting in the performance of their duties as described under this Chapter."
I construe this section to mean exactly what it says, that you and the employees would enjoy immunity from civil liability when acting in the performance of your duties as described under this Chapter. For instance, you would not be civilly liable for the revoking of a person's license or for refusing to grant a license or for suspending a license. I think this is true regardless of the evidence produced at the hearing. It is just as a judge of the court would not be liable for any verdict or decision that he might make though his order, judgment or sentence might be illegal.
I have been unable to find anywhere in said Chapter above referred to wherein it specifically makes it your duty, or any employee of the Georgia Real Estate Commission, to swear out warrants. However, like any other citizen, if you know of any criminal statute being violated, you would have a right to call that matter to the attention of the Solicitor General of the Circuit in which said crime or misdemeanor was being committed, and in the case of swearing out a criminal warrant, it is my opinion that you would stand in the same status as any other citizen.
I think in a case where you or any of your employees might swear out a warrant charging any citizen with crime that it is possible for you to be liable in a civil suit for malicious use of civil process or for false imprisonment.
PROFESSIONS, BUSINESSES AND TRADES-Real Estate Commission A real estate broker's or salesman's license may be issued to a non-resident.
April 7, 1950
Mrs. Annelle S. Johnson Assistant Secretary Georgia Real Estate Commission
OFFICIAL OPINION QUESTION:
"Does this Commission have authority or power to issue a license to a person who does not reside in the State of Georgia?"
ANSWER: Please allow me to call your attention to Code Section 84-1422 of the Anno-
tated Code of 1933 which provides among other things as follows:
"A nonresident of this State may become a real estate broker or real estate salesman in any county in which the provisions of this Chapter are applicable

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by conforming to all of the provlswns of this Chapter, except that such nonresident broker or salesman regularly engaged in the real estate business as a vocation, and who maintains a definite place of business in some other State, shall not be required to maintain a place of business within this State."
This Code Section also provides, as you will see, for recognizing licenses issued by another State. It further provides that when licenses are issued to a nonresident that he shall be required to file an irrevocable consent that suits and actions may be commenced against such applicant in the proper court in the county of this State in which a cause of action may arise, in which the plaintiff may reside. This Code Section also provides for service, and so on.
My answer to your question is yes. It is my opinion that you may issue licenses to nonresidents.

PROFESSIONS, BUSINESSES AND TRADES-Real Estate Commission A person who has a broker's license and retires may return to the real estate business without first having a salesman's license for twelve months.

Georgia Real Estate Commission

May 24, 1950

FACTS:

OFFICIAL OPINION

"Code Section 84-1409 among other things provides as follows: 'Before an individual may apply for a broker's license he must have had a salesman's license in the State of Georgia for at least twelve months and must have been actively engaged in the real estate business for such period of time.'
"We have a man who has made application for a broker's license the facts in this case are-that the applicant had a broker's license for the year 1946 and was actively engaged in the real estate business as a broker for one year but he has not been in the business since 1946.

QUESTION:

"The question is if this applicant meets all other requirements would he be entitled to a broker's license now under the provisions of Section above mentioned."

ANSWER:

I gather from your letter that you are concerned as to whether or not it would be necessary for a person who had a broker's license in 1946 and retired from the business and now desires to go back into the real estate business as a broker to first engage in real estate business as a salesman for twelve months before he would be entitled to a broker's license.
It is my opinion that it would not be necessary for such person to first engage in the real estate business as a salesman before he would be entitled to a broker's license. However, Section 84-1409, which you refer to in your letter, provides as follows:

"Licenses shall be granted only to persons who are trustworthy and bear a good reputation for honesty and fair dealing and are competent to transact the business of a real estate broker or real estate salesman in such a manner as to safeguard the interests of the public and only after satisfactory proof thereof has been presented to the Georgia Real Estate Commissioner.
"Before an individual may apply for a broker's license he must have had a salesman's license in the State of Georgia for at least twelve months and must have been actively engaged in the real estate business for such period of time,

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and must have passed an examination provided by the Commission; except when the applicant has previously held a broker's license in this State he will be eligible for reinstatement of his license upon satisfactory proof being furnished the Commission that he was in good standing with the Georgia Real Estate Commission at the time of his retirement from the real estate business, and conditioned upon his passing an examination to be given by the Commission, and provided that all licensed brokers shall give bond in the sum of $1,000.00, acceptable to and to be approved by said Commission to abide by all laws enacted in reference to such brokers."
So from reading the entire Section it is clear that if the applicant to whom you refer in your letter was in good standing with the Georgia Real Estate Commission at the time he retired from the real estate business in 1946, he would be entitled to a broker's license upon his passing an examination to be given by the Commission and giving bond as required by said Section.

PROFESSIONS, BUSINESSES AND TRADES-Real Estate Commission The Commission cannot prevent a person from receiving a license upon qualification as in Section 84-1401 of the Georgia Code.

Mrs. Annelle S. Johnson, Secretary Georgia Real Estate Commission

August 31, 1950

OFFICIAL OPINION FACTS:
The Georgia Real Estate Commission requests a written opinion with reference to a ruling applicable to the following portion of Section 84-1401 of the real estate license law:
"Provided further that persons who have been engaged in the real estate business either as broker or salesman in counties of less than 70,000 population will be entitled to a license either as broker or salesman upon the payment of the fee for license required by law and will not be required to stand an examination."

QUESTION:
Would the Commission have the authority to make a ruling and enforce the same by setting a dead line for receiving applications and requiring applicants to take an examination for license if application is received after the dead line?

ANSWER:
Code Section 84-1401, of the Georgia Code, provides among other things that persons who have been engaged in the real estate business either as broker or salesman in counties of less than 70,000 population would be entitled to a license either as broker or salesman upon the payment of the fee for license required by law.
The same Code Section provides that such persons would not be required to stand an examination.
It-is my opinion that the Georgia Real Estate Commission is without authority to make any rule that violates this statute.
It is also my opinion that persons who have been acting either as real estate broker or salesman in counties of less than 70,000 population prior to January 16, 1950 would be entitled to a license upon the payment of the fee for license as required by law.

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PROFESSIONS, BUSINESSES AND TRADES-Real Estate Commission It is not a violation of the real estate law to assist in obtaining a loan on real estate and charging a fee for such services without obtaining a license.

September 19, 1950

Mrs. Annelle S. Johnson, Secretary Georgia Real Estate Commission State Capitol Atlanta, Georgia

OFFICIAL OPINION QUESTION:
If a person not licensed to sell real estate charges a client a fee for obtaining a loan on real estate would it be necessary for this person to be licensed by the Georgia Real Estate Commission? ANSWER:
Code Section 84-1402 of the Annotated Code of Georgia of 1933, reads as follows:

"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 interest 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; 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 employed, 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 rent 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."

It is my opinion that a person charging a fee and obtaining a loan on real

estate would not bring such person within the above quoted Code Section defining

real estate broker, or real estate salesman. Therefore such person would not be

required to be licensed by the Georgia Real Estate Commission.



PROFESSIONS, BUSINESSES AND TRADES-Real Estate Commission A person who is employed by another for the purpose of showing property for the purpose of sale or rent and who receives a consideration therefor is required to obtain a license from the Real Estate Commission.

Mrs. Annelle S. Johnson, Secretary Georgia Real Estate Commission

October 3, 1950

OFFICIAL OPINION QUESTION:
If a person owns rental property, either apartments or individual units, and employs someone either on commission or salary to show said property for rent

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or collect rent on said property, would a license be required according to Section 84-1402?
ANSWER:
Code Section 84-1402 of the Annotated Code of Georgia, reads as follows:
"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 interest 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 employed, 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 rent 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."
It is my opinion that a person employed by another for the purpose of showing property for the purpose of sale or rent and who receives a fee, commission or other valuable consideration for their services, and who performs such services without first obtaining a license from the Georgia Real Estate Commission would be acting in violation of the Code Section above referred to. (Code Section 84-1402.)

PROFESSIONS, BUSINESSES AND TRADES-Real Estate Commission A firm, individual or corporation may use the name REALTY and may actually deal in real estate without obtaining a license from the Georgia Real Estate Commission. in certain cases.

Mrs. Annelle S. Johnson, Secretary Georgia Real Estate Commission

October 11, 1950

OFFICIAL OPINION QUESTION:
May an individual, firm or corporation use the name REALTY without first obtaining a license from the Georgia Real Estate Commission?

ANSWER:
Georgia Laws, Extra Session 1949, Regular Session 1950, p. 278, Section 1 thereof reads as follows:
"That Section 84-1401 of the Code of Georgia, as amended, which section deals with the counties in which it is necessary to obtain a license to engage in the real estate business, is hereby amended by striking the figure '70,000' and

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inserting in lieu thereof the figure '30,000' so that said section when amended shall read as follows:
"'It shall be unlawful for any person, firm partnership, association, copartnership or corporation, whether operating under an assumed name or otherwise, to engage in the business or capacity either directly or indirectly of a real estate broker or real estate salesman within any county in this State having a population of 30,000 or more, according to the United States census of 1940, or any future census, without first obtaining a license under the provisions of this Chapter. Provided further that persons who have been engaged in the real estate business either as broker or salesman in counties of less than 70,000 population will be entitled to a license either as broker or salesman upon the payment of the fee for license required by law and will not be required to stand an examination.' "
Section 84-1402 of the Annotated Code of Georgia 1933, reads as follows:
"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 interest 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 employed, 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 rent 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."
However, Code Section 84-1403 of the Annotated Code of Georgia 1933, makes this provision:
"The provisions of this Chapter shall not apply to any person, firm or corporation, who, as owner or lessor, shall perform any of the acts aforesaid with reference to property owned by them; nor to persons, firms or corporations not real estate brokers or real estate salesmen holding a duly executed power of attorney from the owner for the sale, leasing or exchanging of real estate; nor to a receiver or trustee in bankruptcy, an administrator, or executor, or trustee, or any person selling real estate under order of court, or pursuant to the terms of a will, mortgage or deed or trust or deed to secure a debt.''
It is my opinion that an individual, firm or corporation may use the name REALTY and may actually deal in real estate without obtaining a license from the Georgia Real Estate Commission. Provided, however, such person, firm or corporation does not for another and for a fee, commission or other valuable consideration, sell, exchange, buy, rent, or offer or attempt to negotiate a sale, exchange, purchase or rental of any estate or interest in real estate or collect or offer or attempt to collect rent for the use of real estate.

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PROFESSIONS, BUSINESSES AND TRADES-Real Estate Commission All licensed brokers, even though designated as associated brokers, are required to give the $1,000.00 bond.
December 7, 1950
Georgia Real Estate Commission
OFFICIAL OPINION QUESTION:
"According to Section 84-1409 all licensed brokers are required to furnish bonds in the sum of $1,000.00. For other officials of partnership or corporation we have been issuing an associate broker's license and charging a fee of $10.00 for each additional official's license according to Section 84-1415 of the real estate license law.
"Is a $1,000.00 surety bond required of each additional official of a partnership or corporation who has been licensed as an associate broker?" ANSWER:
An Act to amend Section 84-1401 and 84-1409 of the Annotated Code of Georgia (Georgia Laws 1949, 1950, p. 278), provides in Section 2 thereof as follows:
"That Section 84-1409 of the Code of Georgia, as amended, which section deals with qualification of applicants for real estate licenses, is hereby amended by striking the language of said section in its entirety and substituting in lieu thereof new language so that when amended said section shall read as follows:
" 'Licenses shall be granted only to persons who are trustworthy and bear a good reputation for honesty and fair dealing and are competent to transact the business of a real estate broker or real estate salesman in such a manner as to safeguard the interests of the public and only after satisfactory proof thereof has been presented to the Georgia Real Estate Commission.
" 'Before an individual may be granted a broker's license he must have had a salesman's license in the State of Georgia for at least twelve months and must have been actively engaged in the real estate business for such period of time, and must have passed an examination provided by the Commission; except that in extraordinary cases the Commission may in its discretion grant temporary certificate; and except when the applicant has previously held a broker's license in this State he will be eligible for reinstatement of his license upon satisfactory proof being furnished the Commission that he was in good standing with the Georgia Real Estate Commission at the time of his retirement from the real estate business, and conditioned upon his passing an examination to be given by the Commission, and provided that all licensed brokers shall give bond in the sum of $1,000.00, acceptable to and to be approved by said Commission to abide by all laws enacted in reference to such brokers.' "
Code Section 84-1415 of the Annotated Code of Georgia 1933, provides as follows:
"The fees for licenses shall be as follows: " (1) For a broker's license the annual fee shall be $25. If the licensee is a corporation the license issued to it shall entitle one official or representative thereof to engage in the business of a real estate broker within the meaning of this Chapter. For all other officers or representatives of a licensed corporation who shall engage in the business of a real estate broker within the meaning of this Chapter the annual fee shall be $10. If the licensee is a partnership the license issued to it shall entitle one member of said partnership to engage in the business of a real estate broker within the meaning of this Chapter. For every other member of such partnership the annual fee shall be $10. "(2) For a salesman's license, the annual fee shall be $5.

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"All applications for license shall be accompanied by the license fee herein provided. All licenses shall expire upon the 31st day of December of each year."
It is my opinion that all licensed brokers, even though they are designated as associated brokers, would be required under the law to give bond in the sum of $1,000.00, acceptable to the approval by the Georgia Real Estate Commission, to abide by the laws enacted in references to such brokers.
PUBLIC DEFENS~-Military Department 1. A separate appropriation will have to be made by the General Assembly to take care of the needs of the State Guard in the event the National Guard is called into active Federal service. 2. The budgetary funds of the Military Department will not be available to pay members of the State Headquarters Staff and Director of Civil Defense for Georgia.
Major General Ernest Vandiver, Jr. The Adjutant General
OFFICIAL OPINION QUESTIONS:
1. Will the budgetary funds of the Military Department of Georgia be available for expenditures for supplementary equipment and supplies to the State Guard in case the National Guard is called into active Federal Service?
2. Will the budgetary funds for the Military Department be available upon the authorization of the Governor for pay of members of the State Headquarters Staff and the Director of Civil Defense for Georgia?
ANSWER: Ga. Code Ann. Supp. 86-1601 provides: "Whenever any part of the National
Guard of this State is in active Federal service, the Governor .... is hereby authorized to enlist, organize, maintain, equip, and discipline a volunteer defense force ... known as the Georgia State Guard." Ga. Code Ann. Supp. 86-1618 provides: "The Governor is authorized to direct payment to district and unit commanders, of such sums as may be available for the use of said district or unit commanders to pay rent, lights, water, postage, and other incidental expenses necessary to operate a military organization." Neither the above sections of the Code, nor any of the sections in Title 86 chapter 16 of the Ga. Code Ann. Supp. nor any other statutory provisions authorize the budgetary funds appropriated to the Military Department to be used for the Georgia State Guard.
It is my opinion that a separate appropriation will have to be made by the General Assembly to take care of the needs of the State Guard, in the event that the National Guard is called into active Federal service. Of course, the Governor would have the right through his executive powers, and from the appropriation to the Executive Department, to set aside such money as was necessary to assist in the establishment of the State Guard, pending an appropriation by the General Assembly, as set out in Ga. Code Ann. Supp. 86-1618, supra.
I believe that you will find from the past history of the State Guard during World War II that it operated under direct appropriations for public defense, and not those funds appropriated to the Military Department.
Moreover, the pay for the Director of Civil Defense, and others on the Headquarters Staff, was originally made from funds set aside by the Governor under an executive order when he established during World War II the Georgia Volunteer War Service Council. However, at the next session of the Legislature there-

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after, this Council was merged into a legislative created Council known as the Georgia Citizens Council. See Ga. Code Ann. Supp. 40-2301. This same Council, of course, is still extant. The Georgia Citizens Council paid from its appropriations the salary of the. Director of Civil Defense and other Staff officers.

PUBLIC REVENUE-Ad Valorem Tax

It is the duty of the County Board of Tax Assessors to correct mistakes and

errors made by the Board.



April 10, 1950

Honorable W. Harvey Atkinson, Director Property and License Tax Division

OFFICIAL OPINION QUESTION:
"Where the valuation of property has been raised by the Board of Tax Assessors without a formal protest being filed by the tax payer, and the valuation

is subsequently included within the Digest and a tax execution is issued thereon,

is the County Board of Tax Assessors authorized to make a reduction of the valuation because of a mistake or error in fixing original assessment?" ANSWER:
Section 92-6911 of the Code of 1933 Annotated sets forth the duties of the County Board of Tax Assessors, among which is as follows:
"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 between 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." Further, Section 92-6906 of the Code requires that the members of the Board

of Tax Assessors shall take an oath to faithfully and impartially perform the

duties imposed upon them by law, in addition to the oath required of all civil officers.
Under the foregoing provisions of law it is my opinion that the County Board of Tax Assessors is not only authorized to correct mistakes and errors made by the Board but it is made their duty to do so. Of course, such correction should necessarily be certified to the State Revenue Commissioner so that the Digest of file in his office may be made to conform with the County Digest.
I do not find where the question propounded by Mr. McCurdy has been passed on by the Appellate Courts but I feel sure that the courts would sustain this posi-

tion when and if it should come before them for determination.

PUBLIC REVENUE-Ad Valorem Tax American Legion Clubs are not institutions of purely public charity as contemplated by our statutes, and therefore, are not exempt from taxation.
October 5, 1950
Hon. W. Harvey Atkinson, Director Property and License Tax Unit Department of Revenue
OFFICIAL OPINION FACTS:
American Legion posts are created for the following purposes: "To uphold and defend the constitution of the United States of America; to

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maintain law and order; to foster and perpetuate a one hundred percent Americanism; to preserve the memories and incidents of the two World Wars fought to uphold democracy; to inculcate a sense of individual obligation to the community, state and nation; to combat the autocracy of both the classes and the masses; to make right the master of might; to promote peace and good will on earth; to safeguard and transmit to posterity the principles of justice, freedom and democracy; to consecrate and sanctify comradeship by devotion to mutual helpfulness."
Further, such club makes donations to various charities. The club is not operated for the purpose of private pecuniary gain; the club house is used for all legion meetings, for weekly teen-age social functions without cost to the youth, and occasional social functions of the members of the club. PROBLEM:
Is such a club an institution of purely public charity so as to be exempt from taxes?
ANSWER:
Section 92-201 of the Annotated Code of Georgia of 1933, states:
"The following described property shall be exempt from taxation, to-wit: " .. all institutions of purely public charity. . . ."
There is no question as to the patriotic nature of the organization, nor of the benefit to the community through its many programs for the youth of our State. However, the question that must be determined is whether the fact that an organization which performs acts of charity, yet, on the other hand, uses its property and includes within the idea of its organization, benefit to the members as a social club, a fact which is well known.
There are no Georgia cases involving this question in relation to American Legion clubs. The cases of our jurisdiction dealing with the Y. M. C. A. and Boy Scouts of America, are helpful but not controlling, nor are those cases dealing with organizations such as the Masons. In the case of Tharpe vs. Central of Georgia Council of Boy Scouts of America, 185 Ga. 810, the Court said:
"Under the statute, 'the following described property shall be exempt from taxation, to-wit: ... all institutions of purely public charity.' Code, Section 92-201. The test is whether the property itself is 'dedicated to charity and used exclusively' as an institution of purely public charity. 'The exemption from taxation of institutions of public charity, provided for by the constitution, is of such institutions as property not as persons,-the physical things, not the ideal institutions.' ... The character of the plaintiff corporation, as disclosed by its charter provisions and the other evidence, will be considered, of course, in determining whether the use of the property is such as to exempt it from taxation.''
The fact that such an institution performs acts which are charitable, will not in itself exempt it from taxation. Taxation is the rule, and exemption the exception, is an undisputed maxim of the Georgia law. American Legion clubs are organized primarily for their members, and its aims, goals, ambitions or activities, therefore become incidents. Occasional charitable incidents being without the primary purpose of organization, cannot bring an institution within the realm contemplated by the legislature as "an institution of purely public charity.'' Further, the club house building is not used exclusively for benevolent or charitable purposes, and neither is the institution organized exclusively for benevolent or charitable purposes.
I am of the opinion that the American Legion clubs are not institutions of purely public charity as contemplated by our statutes, and therefore, are not exempt from taxation.

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PUBLIC REVENUE-Ad Valorem Tax 1. A tax receiver is not entitled to commission on taxes paid for the retirement of outstanding school bonds of school districts, and taxes levied for county-wide school purposes. 2. A tax receiver is not entitled to commissions on public utilities digest prepared by the State Revenue Department, but he is entitled to his commissions on intangible digest prepared by the State Department of Revenue. 3. Tax receivers are entitled to their commissions when and only, after such taxes are collected by the tax collector. 4. All taxes collected by the tax collector are to be considered as being collected on one digest, unless the law specifically requires that a separate digest be maintained and fixes the fee to be collected on taxes appearing therein separate from the general digest. 5. The tax collector is not entitled to commissions on interest collected on delinquent taxes. 6. The tax collector is entitled to a fee of 50c for the issuance of each fi. fa. for delinquent taxes to be paid upon the collection of said taxes, and to be added to said taxes.
November 13, 1950
Hon. W. Harvey Atkinson, Director Property and License Tax Unit Department of Revenue
OFFICIAL OPINION QUESTION 1. Is a tax receiver entitled to commissions on levies for retirement of outstanding bonds of school districts in a county, and county-wide school tax levy? QUESTION 2. Is a tax receiver entitled to commissions on public utilities and intangible digest prepared by the State Department of Revenue, and submitted to local tax collectors for collection ? QUESTION 3. When are tax receivers entitled to the payment of their commissions? QUESTION 4. Are all taxes collected by the tax collector to be considered as being collected on one digest? QUESTION 5. Is the tax collector entitled to any commission on the interest collected on delinquent taxes? QUESTION 6. What is the legal amount that can be charged for the issuance of a fi. fa. for any delinquent taxes, and to whom and in what proportion this charge is to be paid ? ANSWER 1. A tax receiver is not entitled to commission on taxes paid for the retirement of outstanding school bonds of school districts, and taxes levied for county-wide school purposes. ANSWER 2 A tax receiver is not entitled to commissions on public utilities digest prepared by the State Revenue Department, but he is entitled to his commissions on intangible digest prepared by the State Department of Revenue. ANSWER 3. Tax receivers are entitled to their commissions when and only, after such taxes are collected by the tax collector. ANSWER 4. YES. All taxes collected by the tax collector are to be considered as being collected on one digest, unless the law specifically requires that a separate digest be maintained and fixes the fee to be collected on taxes appearing therein separate from the general digest. ANSWER 5. The tax collector is not entitled to commissions on interest collected on delinquent taxes.

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ANSWER 6. The tax collector is entitled to a fee of 50c for the issuance of each fi. fa. for delinquent taxes to be paid upon the collection of said taxes, and to be added to said taxes. The levying officer and other fees pertaining to tax fi. fas. are the same as common law executions.
A tax receiver is not entitled to commissions on taxes collected for retirement of outstanding bonds of school districts, and for county-wide school taxes. In the case of Board of Education of Decatur County vs. Drake, tax receiver, 157 Ga. p. 8, the court held in headnote (1):
"The tax receiver of Decatur County was not entitled to the commission on the county-wide school tax which was computed and levied from digest prepared by him."
(NOTE: Attention is called to the entire body of the decision of this case.) A tax receiver is not entitled to commissions on public utilities digest prepared by the State Department of Revenue. A tax receiver is only entitled to commissions which are returned on the tax receiver's digest. He is not entitled to any commissions on digest prepared by the State Department of Revenue. In the case of Glynn County v. Dubberly; et vice versa 148 Ga. 290, the court held in headnote (1), that commissions have no application "to returns made exclusively to the Comptroller General of this State, and in which case they are not entered on the tax receiver's digest." However, in cases of intangible taxes, the receiver is entitled to commissions thereon, this being provided for in the Act of 1937-38, Ex. Sess., pages 156-165. Tax receivers are entitled to the payment of their commissions only on such taxes as are actually collected. In the case of Clements, tax receiver, et al. v. Peerless Woolen Mills, 197 Ga. 296, the court held in headnote (1): "Tax receivers and tax collectors have no vested rights in commission for the collection of taxes until the taxes have been actually collected." In the body of this decision, page 301, in discussing the case, the court held: "Therefore, the intention of the legislature clearly appears to have been that tax receivers and tax collectors are entitled to commissions only on such taxes as are actually collected." In Salmon v. Floyd County, 24 Ga. App. p. 796, the court held: "We are of the opinion that the compensation of the tax receiver is not due and collectible until after the taxes are collected by the tax collector." All ad valorem taxes for the purpose of making up tax collector's digest must be treated as one digest and as a whole, and should be considered as a whole except wherein the law provides for special taxes, in which case, the fee or commission the tax collector is entitled to receive is fixed by said law. In this connection, see Read, tax collector, vs. Glynn County, 145 Ga. p. 881, headnote (5). A tax collector is not entitled to commission on the interest collected on delinquent taxes. Section 92-5005 of the Annotated Code of Georgia of 1933, reads as follows: "All interest so collected by the several tax collectors shall be by them paid to the State and county at the time and in the manner that 'taxes are required to be paid." It will be noted that all interest collected by the tax collector shall be paid to the State and county in the same manner that taxes are required to be paid. (Emphasis supplied) Tax collectors are entitled to a fee of 50c for issuing fi. fas. against delinquent taxpayers, said amount to be paid to the tax collector only upon the collection of the amount due on said fi. fa. All other levying officers and c~mrt officials are entitled to cost fees as in common law executions. See Section 92-8002 of the Annotated Code of Georgia of 1933.

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PUBLIC REVENUE-Ad Valorem Tax (Unofficial) Property is taxable on a basis of its value as of January 1 of each year.
January 10, 1950 Honorable J. A. Johnson
In reply to your letter of January 7, 1950, requesting an opinion as to the taxable value of a certain piece of property owned by you, I wish to call to your attention Code Section 92-6202 of the Annotated Code of Georgia of 1933, which reads as follows:
"92-6202. What property returnable.-The individual returns made by taxpayers to the tax receiver shall be for property held and subject to taxation on the first day of January, next preceding."
Construing the language of this code section, I am of the opinion that you would be required to return the lot or real property that you referred to in your letter on a basis of its value as of January 1, 1950. As you were in possession of the real estate on January 1, 1950, you would be liable for taxation of all improvements thereon as of this date.
PUBLIC REVENUE-Ad Valorem Tax (Unofficial) The personal property tax exemption provided for in Section 92-239 of the Georgia Code applies only to personal property used by the owner within the home.
February 13, 1950 Honorable J. 0. Parker
I am pleased to acknowledge receipt of your letter of January 18th concerning tax exemption of personal property and the receiving of tax returns by the Tax Receiver.
Section 92-239 of the Georgia Code, enacted in pursuance of Article VII, Section I, Paragraph IV of the Constitution of Georgia, reads 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 exceed $300 in actual value."
This section applies only to property used by the owner within the home. Therefore, a resident of Fulton County would not be entitled to claim an exemption for property used in Banks County.
The tax receiver receives the application for personal property tax exemption on a form furnished him by the State Department of Revenue. Stoves, refrigerators, washing machines, and similar appliances would not be listed separately, but would be listed under the item "Household and Kitchen Furniture." However, Section 92-247 provides that:
"If the official receiving said application is dissatisfied with the valuation of any item or items thereof, he shall place such values in their stead as he thinks just and lawful, and in cases where the total value of listed items, as corrected by him, exceed the exemption provided for in this law ( 92-239 to 92-249, 929948) he shall notify the owner of his action, either personally or by mail, and the value so determined shall be final, unless the owner, within 10 days from the date of said notice, demands in writing an appeal to the board of tax assessors of the county or municipality, with the right of appeal from the decision of the board of assessors to the superior court as is provided in appeals from the court of ordinary."

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PUBLIC REVENUE-Ad Valorem Taxes (Unofficial) A bona fide resident of another state who purchases a Georgia license plate for his motor vehicle, does not have to pay ad valorem taxes thereon in the State of Georgia.
November 21, 1950
Honorable Amos L. Rogers, Sr. Dear Mr. Rogers:
I am in receipt of your letter of November 15, 1950 in which you ask if a nonresident student attending college in Georgia and registering his motor vehicle here is liable for ad valorem taxes on such vehicle.
The fact that a person registers his motor vehicle in the State of Georgia may indicate that he is a resident of Georgia. However, the mere purchase of a license tag is not sufficient to show that the vehicle so registered is subject to ad valorem tax. If a nonresident registers his vehicle in the State of Georgia and can show that he is a bona fide legal resident of another state, he is not required to pay ad valorem taxes on the vehicle registered in Georgia. A nonresident is required to register his vehicle within 30 days after coming into Georgia. (Section 68-221 of the Georgia Code Annotated, 1933) Thus, when a nonresident student registers his vehicle in Georgia, he is merely complying with our law requiring the purchase of license plates for motor vehicles, and in nowise does such a purchase deprive the student of his home state domicile. In the absence of proof that a student is a legal resident of Georgia, a motor vehicle owned by him is not subject to ad valorem taxes in this State.
PUBLIC REVENUE-Beer, Wine, Liquor There is no law at the present time concerning the sale of malt beverages near a church.
April 18, 1950
Hon. Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION QUESTION:
Is there any law concerning the sale of beer within 100 yards of a church? ANSWER:
The provision in Georgia law restricting such a sale is found in Georgia Code Section 58-724. From a study of the Code Section's history, I find that it stemmed from Section 15-b of the Malt Beverage Act of 1935. This section, beginning with the words, "no alcoholic beverage of any kind shall be sold, etc.," was declared unconstitutional by the Supreme Court of Georgia in the case of McCaffrey vs. State, 183 Ga. page 827. The basis for this decision was that the section embraced a field larger than that comprehended by the Malt Beverage Act.
Later, an attempt to amend Section 15-b was undertaken by the General Assembly, (Ga. L. 1937, pp. 148-151) by adding to said section a proviso defining school ground or college campus, and by adding the word "church." However, the section still began with the words, "no alcoholic beverage of any kind shall be sold, etc." The section as it stands now has not been declared unconstitutional by any court, but the defect by which Section 15-b of the Malt Beverage Act was declared unconstitutional, is present and identical in Section 58-724 of the Annotated Code. Therefore, it is my opinion that the section is still unconstitutional and if put to a test would be so declared. However, this section need not be tested

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in a court to be declared unconstitutional for the reason that the present Section 58-724 came into being by virtue of an amendment to a statute previously declared unconstitutional and void by the Supreme Court of Georgia. The old statute being void, no longer existed and could not therefore be amended. Conse quently, we have not at the present time, a law governing the sale of malt bever ages in regard to the vendor's location to a church.
PUBLIC REVENUE-Beer, Wine, Liquor When a liquor dealer violates any rule or regulation of the Revenue Commissioner, which is not made a crime by the General Assembly, he must be dealt with by a suspension or revocation of his license.
July 25, 1950 Honorable Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION FACTS:
A representative of a wholesale liquor dealer took an order from a representative of a retail dealer at the retail dealer's place of business for twenty-five cases of liquor, and he requested that when the liquor was ready to be delivered for the representative of the wholesale liquor dealer to call him, as he wanted to meet the wholesale dealer's truck and transfer the liquor to his truck. The representative of a retail liquor dealer met the wholesale dealer's truck and the liquor was transferred, as agreed, from the wholesale dealer's truck to the truck driven by the representative of the retail dealer. The transfer was made in the county where the retail dealer's place of business was located, and the liquor was paid for with a personal check of the representative of the retail dealer. The truck driven by the representative of the retail dealer had no signs printed or displayed on it to show that it was to be used to convey liquor. QUESTION:
Has the wholesaler violated the law in making the transfer of the liquor to the truck driven by the representative of the retail dealer? ANSWER:
It is clear that both the wholesale dealer and the retail dealer acted inviolation of the rules and regulations of the State Revenue Commissioner, under the facts stated, and Rule No. 918 declares that all acts forbidden to producers, wholesalers, and retailers, or any of them, shall be likewise forbidden to every agent, servant, and employee thereof, and to persons acting with the knowledge, consent, or acquiescence thereof.
A wholesale dealer's license authorizes the holder to sell distilled spirits at wholesale to the holder of a wholesale license or to the holder of a retail license for the purpose of resale. After the delivery of spirituous liquors has been accepted by a duly licensed wholesale liquor dealer through the State warehouse as provided by law, the law is silent as to how delivery shall be made to a retail dealer upon a sale thereof to such retail dealer by the wholesaler. However, the State Revenue Commissioner is authorized and empowered to adopt such rules and regulations, not inconsistent with the law, necessary to control the manufacture, sale, distribution, storage, and transportation of distilled spirits. Pursuant to such authority, the Commissioner promulgated certain rules for the transportation and delivery of alcoholic beverages and liquors. The rules pertinent to the facts herein involved are Nos. 602 and 603, as follows:
"602. Except as provided in section 204, no distilled spirits shall be moved

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from one point within Georgia to another point within Georgia except by a licensed wholesaler, a licensed common carrier acting for and paid by a licensed wholesaler, or a licensed retailer. No common carrier shall move any distilled spirits between two points within Georgia without forwarding to the Commissioner, on the date of shipment, a copy of the bill of lading, waybill or shipping invoice on such shipment, showing the point of origin, the point of destination, and the names and addresses of the consignor and consignee. A wholesaler or a retailer shall transport distilled spirits only in a motor vehicle registered in his name with the Commissioner and bearing his name, all his license numbers under the Act, and the addresses of all his places of business painted or prominently displayed on at least two sides thereof in prominent letters in the English language, and only between sun-up and sun-down on a week-day, and only if each such shipment is accompanied by an invoice or itemized list thereof showing in detail the number of cases, the size of containers, type, brand and price of the distilled spirits included in such shipment, and the point of origin and the point of destination thereof. When any such vehicle is transporting distilled spirits, no other goods, wares, merchandise or property of any description, except wines, shall be carried therein or included in any invoice or itemized list covering said distilled spirits; and wines, even if transported with distilled spirits, shall be shown on a separate invoice or itemized list. No licensed wholesaler shall transport distilled spirits except from a State warehouse to his warehouse or place of business as a licensed wholesaler, or from his warehouse or place of business as a licensed wholesaler to the places of business or warehouses of licensed retailers or other licensed wholesalers. No licensed retailer shall transport distilled spirits except from a licensed wholesaler's warehouse or place of busines~t to his own warehouse or place of business as a licensed retailer or from one of his warehouses or places of business to another thereof.
"603. A licensed wholesaler shall take delivery of distilled spirits only at a State warehouse or at his warehouse or place of business, and a licensed retailer shall take delivery of distilled spirits only at his or a licensed wholesaler's warehouse or place of business, and only from a licensed wholesaler or a licensed common carrier acting for and paid by a licensed wholesaler; and no person shall make any deliveries of distilled spirits to either a wholesaler or a retailer except as provided in this section."
Section 58-1069 of the Code of 1933 Annotated Pocket Part provides:
"Whoever violates any of the provisions of this Chapter for which no specific penalty is provided, or any of the rules and regulations issued under authority of this Chapter, and in accord with the provisions of this Chapter, shall be guilty of a misdemeanor, and upon conviction, shall be punished as for a misdemeanor as provided in section 27-2506."
The recent case of Glustrom v. State, 58 SE 2d 534, is one where the defendant was convicted of a misdemeanor for the violation of Rule 602 above quoted, and the Supreme Court held:
"The General Assembly did not provide that the violation of regulations policing the industry and requiring certain acts to be performed in a specified manner would be a misdemeanor. In every instance reasonable rules and regulations promulgated for administrative purposes or for policing the industry may be enforced as to licenses either by a suspension or cancellation of the license. The declaration, that a violation of 'rules and regulations in accord with this Act' shall be a misdemeanor, limited the power to promulgate rules, the violation of which would be a misdemeanor, to those in harmony with what the Assembly had already declared to be a crime.

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"This court will never presume that the General Assembly intended to enact an unconstitutional law. Where the language of an act is susceptible of a construction that is constitutional, and another that would be unconstitutional, that meaning or consruction will be applied which will sustain the act. Unrestrained and unrestricted power by the State Revenue Commissioner to declare a violation of his administrative and policing regulations to be a misdemeanor, or such declaration by the General Assembly without limiting the power to those things declared to be a misdemeanor by the Assembly, would offend the Constitution. Applying the limitation contained in 58-1069, as was evidently intended by the Assembly, the act is not subject to the attacks made upon it.
"Rule 602, which forms the basis of the accusation in this case, is an administrative or policing regulation that goes beyond those things declared by the General Assembly to be a misdemeanor. As an administrative rule or policing regulation, it could be enforced against the licensee by suspension or cancellation of his license. It has no other valid force and effect."
It therefore appears that where a liquor dealer violates any rule and reguation of the Commissioner, passed pursuant to the Act to Tax, Legalize and Control Alcoholic Beverages and Liquors, which is not specifically made a crime by the General Assembly under the Act, the offender must be dealt with by the suspension or revocation of his license by the Commissioner under the exercise of his police powers in the control of the manufacture, sale, distribution, storage, and transportation of alcoholic beverages and liquors under the rulings in the Glustrom case, supra.
PUBLIC REVENUE-Beer, Wine, Liquor Malt beverages and distilled spirits may be purchased by railroad common carrier for re-sale at public auction if such carrier is the holder of a State license to deal in beer and distilled spirits. Wine can only be purchased from a wholesaler for re-sale.
Hon. B. I. Gilbert, Director Alcohol Control Unit Department of Revenue
OFFICIAL OPINION QUESTION:
Where malt beverages, wines and distilled spirits are unclaimed by a consignee from a railroad common carrier, can the common carrier bid upon such alcoholic beverages after being advertised as in the case of other unclaimed shipments? ANSWER:
(1) Malt beverages may be purchased by a railroad common carrier for re-sale at public auction if such common carrier is the holder of a State license to deal in malt beverages.
(2) Wines may not be purchased by a railroad common carrier for re-sale except from a duly licensed wholesaler.
(3) Distilled spirits unclaimed by a consignee can be purchased at public auction by a railroad common carrier if the holder of a State license to deal in distilled spirits. Sale would have to be conducted under authority of State Revenue Commissioner.
The disposal and sale of alcoholic beverages referred to in the question propounded, is governed by three separate and distinct Acts. Accordingly, a discussion of each will be taken up.

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(1) Malt Beverages. The purchase of malt beverages by retailers is not restricted to wholesalers andjor brewers licensed by the State. It must be borne in mind that the purchaser of malt beverages must have a license if the same beverages purchased are to be offered for re-sale. If a licensee purchases malt beverages from sources other than brewers and wholesale dealers licensed by the State, the conditions of Section 58-710 of the Georgia Annotated Code must be complied with. Therefore, a railroad common carrier may purchase malt beverages at public auction for re-sale, when and only, such common carrier is duly licensed by the State to sell malt beverages at re-sale.
(2) Wines. Section 58-928 of the Georgia Code Annotated reads as follows: "Only wine bought from licensed distributor to be sold.-No wine shall be sold by any retailer in this State except same was purchased or acquired from a licensed wholesale Georgia distributor."
The above quoted Code Section provides specifically that retailers may purchase wines only from duly licensed wholesalers, and it follows that a railroad common carrier holding a retail license to sell wine would not be authorized to purchase wines from any source other than a licensed wholesaler.
(3) Distilled Spirits. There are no provisions of law, nor is it provided in the Rules and Regulations of the Revenue Department relating to distilled spirits, authorizing the disposal of distilled spirits in the hands of a common carrier which are unclaimed by a consignee. Alcoholic beverages are strictly regulated in this State, and are under the direct control and supervision of the State Revenue Commissioner. Under the provisions of Section 58-1022 of the Georgia Code Annotated Supp., Par. (h), the Commissioner can promulgate orders not inconsistent with the laws relating to distilled spirits. I am therefore of the opinion that the Commissioner of Revenue having control of distilled spirits and the power to control the sale and transportation thereof, could authorize the sale of distilled spirits unclaimed by a consignee in the hands of a common carrier. A common carrier could bid on distilled spirits only, if such common carrier is the holder of a State license to deal in distilled spirits.
PUBLIC REVENUE-Beer, Wine, Liquor 1. Booklet or recipe book given away as premium by retail liquor dealers prohibited. 2. Recipe book may be given away by retail liquor dealers, when not of a promotional nature, in the discretion of the Revenue Commissioner.
August 9, 1950
Hon. Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION QUESTION:
Can THE STANDARD BARTENDER'S GUIDE, a recipe booklet without reference to brands of distilled spirits, be given as a premium or give-away by retail liquor stores in the State of Georgia, and is there a restriction on the prices a store may pay for such booklet?
ANSWER: Retail liquor dealers may not give away any kind of booklet or recipe books
as a premium, but may give away a recipe book or pamphlet submitted to and approved by the State Revenue Commissioner. There is no restriction on price of booklet.

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CONCLUSION: Section 802 of the Rules and Regulations relating to distilled spirits promul-
gated by the Department of Revenue on June 28, 1948, reads as follows: "No person shall issue, give away or use, in connection with the advertising
or sales promotion of any distilled spirits, any radio, loud speaker, victrola, phonograph or other similar device. Nor shall any person advertise or in any way encourage the use of any distilled spirits by the use or means of any motion picture or motion picture slides or other like or similar devices, nor by the use of trade novelties of any kind or character (trade novelties including but not being restricted to napkins, key rings, watch fobs, favors, pourers, glasses, bottle openers, trinkets, souvenirs, match folders or boxes, blotters or other articles whose principal or incidental purpose is the promotion of sales). Recipe books or pamphlets submitted to and approved by the Commissioner may be distributed. Nor shall any person attempt to promote the sale of distilled spirits by use of trade or discount cards or other similar devices, nor shall any person give away, sell, lend or otherwise distribute any trade premium of any kind or character, nor shall any person give away or offer to give away, as samples or otherwise, any distilled spirits for the purpose of inducing a purchase of any distilled spirits, nor shall any person sell, give away or lend any distilled spirits for the purpose of attracting attention to or promoting the sale of any particular brand or kind of distilled spirits."
The above quoted rule specifically provides that no trade premium of any kind or character shall be given away to promote the sale of distilled spirits. Also, it provides that recipe books may be distributed if approval is given by the State Revenue Commissioner.
If it is determined that the recipe book is given away to promote the sale of distilled spirits, it would be the duty of the Revenue Commissioner to deny the distribution of such booklet. This conclusion is reached because the rules and regulations governing the sale of alcoholic beverages prohibit in any way a promotional scheme by package store operators. However, if it is determined that distribution of the recipe booklet is not of a promotional nature in any way, the Commissioner could, in his discretion, authorize its distribution.
PUBLIC REVENUE-Beer, Wine, Liquor The Commissioner of Revenue is without authority to waive penalty on breweries, wholesale distributor or retail dealer in malt beverages, who fail to file application fee as required by Sec. 58-733, Ga. Code Ann. Supp., unless the provisions of Sec. 58-734, Ga. Code Ann. Supp., are complied with.
August 29, 1950
Hon. J. G. Rockmore, Director Malt Beverage Tax Unit
OFFICIAL OPINION QUESTION:
Does the Commissioner of Revenue have authority to waive the penalty on a brewery, wholesale distributor or retail dealer in beer who fails to file an application for license with the proper fee within fifteen days of the date of beginning business, or from the date of the expiration of a previous license? ANSWER:
The Commissioner of Revenue cannot waive the penalty unless the issuing of license has been withheld by the local governing authorities, and affidavit setting forth these facts has been presented to the Commissioner of Revenue.

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CONCLUSION: In reaching the above conclusion, Sections 58-733 and 58-734 of the Georgia
Code Annotated Supplement must be construed together. These two Code Sections read as follows:
"Failure to apply for license in 15 days; penalty.-If any person, firm or corporation, whether operating as a brewery, wholesale distributor or retailer, who enters business or conducts business, fails to file application for license with the proper fee accompanying same within 15 days from the date of beginning business, or from the date of the expiration of the previous license, shall be required to pay an amount equal to one and one-half the amount required for a license under the classification under which the business is conducted."
"When penalty waived.-In cities or counties where the issuing of licenses have been withheld by the licensing authorities, this higher price may be waived on presentation of an affidavit from the licensing authorities, setting forth facts and reasons showing that it was impossible for the applicant to have secured a license within the 15-day period from the expiration of the old license, or from the date the dealer entered business, and the regular price accepted for the license."
It will be noted that the statute requires that a brewery, wholesale distributor or retailer "shall be required to pay" a penalty if application with required fee is not filed within fifteen days from the date of beginning business, or from the date of the expiration of the previous license. The word "shall" is generally interpreted as mandatory, and all words will be given their ordinary meaning in construing a statute unless such construction will frustrate legislative intent. In the instant matter, it is clear and unmistakable that the legislative intent was that all those who deal in malt beverages in this State are required to obtain a license in a specified time, and failure to so acquire a license would work a penalty unless the provisions of the above quoted Code Section 58-734 were complied with.
The statute relating to the question propounded being clear and unambiguous, together with the fact that it expressly provides under what conditions penalties may be waived, it must be concluded that the Revenue Commissioner is without authority to waive penalties other than those provided in said statute.
PUBLIC REVENUE-Beer, Wine, Liquor 1. The Commissioner of Revenue does not have to furnish warehouse space for storage of liquors, regardless of the amount, but only that space necessary for the wholesalers to carry on their normal business. 2. The Commissioner of Revenue may rent or sublease warehouse space for storage of liquors, although -paid for by liquor wholesale dealers if under proper lease agreement.
September 22, 1950
Hon. Charles D. Redwine, Commissioner Department of Revenue
OFFICIAL OPINION QUESTION (1) Must the State of Georgia furnish as many liquor warehouses as required by the liquor wholesalers, regardless of the amount of liquor stored? QUESTION (2) May the State rent additional warehouses for the storage of liquors at a nominal sum with the knowledge that the wholesalers are paying the actual rent, and arrange by sublease or otherwise, to require from the State of Georgia a rental fee of $1.00 per month? ANSWER (1) No. The State must furnish only that amount of warehouse

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space which is ample and sufficient to store liquors for the customary normal business of wholesalers. ANSWER (2) The Revenue Commissioner may, in his discretion, rent or sublease additional warehouse space, although such rent is paid by wholesalers, provided he has complete control thereof by proper rent or lease agreement.
Section 58-1013 of the Georgia Code Annotated, Supplement, provides as follows:
"The State Revenue Commissioner shall charge a rental on each square foot of floor space, at a rate to be determined by the State Revenue Commissioner, which rate shall apply, at the same rate per square foot, for all manufacturers or distillers." (Acts 1937-38 Ex. Sess., pp. 103, 107.)
The above quoted section merely provides that the State Revenue Commissioner shall furnish warehouse and storage spaces for the purpose of "furnishing ample storage space" for the products of all manufacturers or distillers. In determining what is "ample storage space", the requirements of the wholesalers in the ordinary and normal course of business should be established, and if the Revenue Department is now furnishing ample or sufficient storage space whereby the wholesalers can conduct their operations without inconvenience or without suffering loss because of warehousing facilities as operated by the State, it would be readily observed that the requirements of Section 58-1013, supra, are being complied with. It is not believed that the legislature intended that the State should furnish warehouse space for any quantity of liquors because of abnormal conditions or otherwise, but merely that amount of space that would insure the wholesalers a sufficient or ample supply of liquors in the ordinary and normal operation of their business.
The Commissioner of Revenue in his discretion, and if he deems it necessary, has the authority to rent or sublease warehouses for the storage of liquors. It would not be objectionable for the Commissioner to sublease warehouse space which was provided and paid for by wholesale liquor dealers, so long as control of the leased property is exclusively under the direction of the Commissioner by proper lease agreement.
PUBLIC R.EVENUE-Beer, Wine, Liquor Where a retail liquor licensee co-mingles unpaid tax liquor with paid tax liquor, the burden falls upon such licensee to distinguish the two in order to prevent the Revenue Commissioner from confiscating the whole stock.
December 29, 1950
Honorable Charles D. Redwine Commissioner, Department of Revenue
OFFICIAL OPINION QUESTION:
Where a retail liquor licensee operating a store under a license granted by the Department of Revenue has a stock of liquor, a part of which has genuine liquor revenue stamps attached thereto and where a considerable portion of the stock has counterfeit liquor revenue stamps attached, does the Commissioner have authority under the law to confiscate that part of the liquor to which is attached genuine stamps?
ANSWER: If it is determined by the Revenue Commissioner that the liquors in the store
of the licensee was fraudulently, wilfully and wrongfully mixed and confused and

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the licensee can not distinguish the legal liquor from the illegal liquor, the Commissioner would be authorized to declare the entire stock of whiskey contraband,
From the facts ascertained in the above question it seems that this proposition would fall within the operation of the principle that where a person mingles his goods with those of another and is unable to distinguish them, the loss must fall upon him who causes the mingling of the goods. If such a mingling of the liquors was fraudulently, wilfully or wrongfully and there is no evidence to distinguish the goods of the one from the goods of the other, such a fraudulent intermingling of the goods would make the licensee of the liquor store guilty of "confusion of goods", and such licensee would forfeit all of his interest in the mixture to the State Revenue Commissioner.
Corpus Juris Secundum, Volume 15, paragraph 4, page 961, reads as follows: "The rule stated in Corpus Juris, which has been quoted and cited with approval, is that where one fraudulently, wilfully, or wrongfully intermingles his goods with those of another, so that there is no evidence to distinguish the goods of the one from those of the other, the wrongdoer forfeits all his interest in the mixture to the other party. In other words, he can not recover for his own proportion, or for any part of the intermixture, but the entire property vests in him whose right is invaded." (Emphasis supplied.)
Also, in Claflin and Company, et al vs. The Continental Jersey Works, et al, 85 Ga., page 27, headnote 4, reads as follows: "Where one fraudulently, wilfully or wrongfully mixes or confuses his goods with those of another and cannot distinguish his own, he will lose them; but where he does so innocently or by mistake, if he can distinguish them or show their value or their proportion of value to the whole, he ought in equity to be allowed to do so."
Thus, it may be seen by the above authorities that if the illegal liquor was co-mingled with the legal liquor so that it is impossible to determine the genuine revenue stamp of each individual bottle or container of liquor, the licensee who was responsible for such co-mingling and whose duty it was to only have in his store whiskey bearing genuine revenue stamps must bear the loss. The burden falls solely upon the licensee to distinguish legal liquor from the illegal liquor.
PUBLIC REVENUE-Cigarette Tax In determining basic cost of cigarettes under the Unfair Cigarette Sales Tax, the stamp tax may be properly included as an element of basic cost.
Mr. Albert Dozier Deputy Commissioner Department of Revenue
OFFICIAL OPINION QUESTION:
In determining the "basic cost of cigarettes", under Sub-Section (i) of Section 2 of the Unfair Cigarette Sales Act, Ga. Laws 1949, pp. 695, 697, may the stamp tax be properly included as an element in the basic cost, to which the wholesaler may apply the 41,6 o/o presumed cost of doing business and the one-half of 1o/o cartage cost? ANSWER:
Yes. This tax is defined by the Act as an element of the basic cost. CONCLUSIONS:
On questions of legislative intent, our Courts have said that judicial interpretation is excluded where none is needed in giving effect to plain and unambiguous legislative language.

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Neal v. Moultrie, 12 Ga. 104; Calhoun v. McLendon, 42 Ga. 405; Papworth v. The State, 103 Ga. 36; State Revenue Commissioner v. Alexander, 54 Ga. App. 295.
There being no apparent ambiguity, full effect must be given to the language of this sub-section which reads as follows:
"i. 'Basic cost of cigarettes' shall mean the invoice cost of cigarettes to the retailer or wholesaler, as the case may be, or the replacement cost of cigarettes to the retailer or wholesaler, as the case may be, within thirty days prior to the date of sale, in the quantity last purchased, whichever is lower, less all trade discounts and customary discounts for cash, to which shall be added the full face value of any stamps which may be required by any cigarette tax act of this State now in effect or hereafter enacted, if not already included by the manufacturer in his list price."
Section 2 of the Act of which the sub-section here in question is a part, is entitled "Definitions." "Basic cost of cigarettes" is defined by this sub-section as being composed of the following elements: (1) invoice or replacement cost within thirty days of sale, whichever is lower, (2) less trade or cash discount and (3) plus stamp tax unless the tax is included in the list price.
It is the last proviso in Sub-Section (i) to which the answer to your query is keyed;. that clause reads, "... if not already included by the manufacturer in his list price." From this amplificatory clause, it is evident that if the stamp tax is paid by the manufacturer and is included in his selling price, then as to the manufacturer's buyer, the tax is a portion of the invoice cost and is clearly the first element of the basic cost.
The recipient of cigarettes from a manufacturer without the stamp tax having been included in the list price is permitted by the Act to include the stamp tax as an element of the basic cost of cigarettes, the recipient of cigarettes being required by law to immediately place stamps thereupon.
While the definition of basic cost may not be in accordance with the basic principles of accounting, the language of the Act appears legally unambiguous. Accordingly, for the purposes of determining the "basic cost of cigarettes", the stamp tax is an element properly included in basic costs for the purposes of this Act.
In summary, it may be said that this Sub-Section (i) means with regard to the stamp tax that the buyer, or recipient, of cigarettes is permitted to add the stamp tax as an element of the basic cost, provided that tax has not been included by the manufacturer in his list or invoice price.
PUBLIC REVENUE-Equalization of Property (Unofficial) The Revenue Commissioner is vested with authority to equalize all property between the various counties of the State.
August 10, 1950
Honorable Q. L. Bryant I am in receipt of your letter of August 4, in which you state that the State
Revenue Commissioner has placed a valuation on all automobiles in the State and that the tax assessors of the various counties have been instructed by the Revenue Commissioner to follow the valuations placed on said automobiles. You ask whether or not the Revenue Commissioner has the authority to make this valuation and then require the tax assessors to abide by it.

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The answer to your question can be found in Section 92-7002 of the Annotated Code of Georgia of 1933 which provides as follows:
"It shall be the duty of the State Revenue Commission to carefully examine the tax digests of the several counties, filed in the office of the Comptroller General, and to compare said digests for the purpose of ascertaining whether the tax valuation of the various classes of property as made in the respective counties is reasonably uniform as between the respective counties. It is the purpose and intent of this law to bring about as far as practicable an equalization throughout the State of the values of the various classes of property subject to be taxed, so that the values fixed in one county shall not be out of due proportion to the values fixed in other counties on the same classes of property. If it shall appear to the State Revenue Commission that in any one or more of the counties the taxable values fixed upon any one or more classes of property are not reasonably uniform with the values fixed upon the same classes of property in other counties, the said Commission shall investigate and inquire as to the reason therefor, and after making such investigation and comparison, shall have authority to adjust and equalize the same, either by adding a fixed per centum to the county valuation of any class of property in any county, if they find the county valuation too low, or by deducting a fixed per centum from the county valuation if they find the county valuation too high, as may appear to be just and right between the counties; and the State Revenue Commission shall thereupon notify by United States mail the chairman of the County Board of Tax Assessors of the county affected that the county valuations upon the classes of property specified in said notice shall be raised or lowered by the per centum fixed by the State Revenue Commission, and the Comptroller General shall thereupon return to said county its tax digest for correction accordingly."
Under the above quoted code section and the editor's note to said section, the Revenue Commissioner has the authority to equalize all property in the State of Georgia as between the various counties of the State of Georgia, and exercising the powers granted in said code Section, has the authority to place the valuation of any and all property located in the various counties of the State of Georgia for the purpose of equalizing the value of said property.
The Acts of the General Assembly of 1937-38, Ex. Sess., pp. 77, 81, provides that "the Revenue Commissioner shall be bound by the same laws regulating the approval of County Tax Digests as are now in force 'Yith reference to the approval of same by the Comptroller General."
It is clear under the foregoing statutes that the State Revenue Commissioner is bound to examine the county tax digests for the purpose of ascertaining whether the tax valuation of the various classes of property as made in the respective counties is reasonably uniform as between the respective counties. Under this authority he has the power to adopt a schedule of uniform values on like properties as between counties that, in his discretion, will carry out the intention of the Legislation. As applied to the present formula for establishing uniformity as to value on autos, it is my firm opinion that such a procedure is legal and that the Commissioner may reject any given digest that does not follow the schedule now uniformly adopted throughout the state:

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PUBLIC REVENUE-Gasoline Retailers' Refunds A concern which stores excess gasoline to be later distributed to its own retail outlets cannot be classified as a wholesale dealer and thereby receive the wholesale dealer's 2% refund on gas tax.

Mr. W. L. Burch Director, Gas Tax Refund Unit

February 20, 1950

OFFICIAL OPINION FACTS:
Mr. N. A. Hardin, Vice President of Crescent Oil Company of Griffin, offers a statement showing deliveries to a bulk tank in Griffin, Georgia, from Citizens Oil Company of Tallahassee, Fla., amounting to 171,785 gallons of gasoline. Then this gasoline is delivered to other stations located in this vicinity, said deliveries being supported by delivery tickets from this bulk station. QUESTION:
The question is whether these stations or corporations which distribute this gasoline to other stations owned by same company should be classed as a wholesale distributor in the meaning of the Act passed by the General Assembly of Georgia 1947 (Ga. Laws 1947, P-1115) which exempts wholesale distributors from the 2% refund as retailers.

ANSWER: Since receipt of your letter, I have information that the Citizens Oil Company
is a bonded distributor under Georgia law shipping gasoline into the State and collecting the tax due thereon, from whom the Crescent Oil Company purchases motor fuel. It appears that the Crescent Oil Company receives the motor fuel as a retailer and that any over-supply that cannot be placed in the tanks of the various retail stations operated by the Crescent Oil Company is stored in a tank at Griffin, Georgia, until such time as it can be distributed to the retail outlets. I understand that the Crescent Oil Company does not sell motor fuel to anyone at wholesale, but to the contrary, the first sale is at retail through the various stations operated by the Crescent Oil Company.

Under the foregoing statement of facts it is my opinion that the Crescent Oil Company is not a wholesale dealer, so as to be excluded from the payment of the 2% refund under the General Appropriations Act of 1949 but would be entitled to the 2 o/o refund as a retail dealer where all provisions of law relating to the payment of refunds to retail dealers has been complied with.

PUBLIC REVENUE-Gasoline Retailers' Refunds 1. Person making refund claim must be same person in whose name license is issued. 2. Applications for refund are allowed up to six months after the date the tax is paid.
June 13, 1950
Honorable W. L. Burch, Director Gas Refund Unit Department of Revenue
OFFICIAL OPINION FACTS:
Your request states that you have required a retailer who is paid on a commission basis to acquire a retail license or pump tax receipt in his individual name.

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It further states that these retailers claim that they are not required to acquire these licenses in their own name, but rather the company for which they operate, on a commission basis, may acquire licenses in the company name, and the retailers would not be precluded from drawing the 2% retailer's refund. QUESTION:
1. Shall retail license be in the same name as person making refund claim? 2. Shall delinquent retail dealers be allowed six months back from date or from date State pump tax is paid-forward only? ANSWER: In regard to your first question, I refer you to the Georgia Code Annotated of 1933, Section 92-1103, which provides as follows: "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 be issued to tihe 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 corporation is entitled to operate, for which service said tax collectors shall receive a commission of 10 per centum of the amounts so collected." (Underscoring supplied.) The above statute specifically provides for the payment of the pump tax and by whom the payment is to be made. You state in your letter that the operators of the filling station are paid on a commission basis. Considering this factor, they are merely agents of the actual retailer. The law specifically provides that this pump tax, the certificate of which is a license, shall be paid by the retailer. When the tax is paid, the license or certificate of payment is issued in the name of the person so making the payment. This license serves as evidence of the validity of the applicant's claim for refund. It necessarily follows that the retail license must be in the name of the person making the refund claim. In answer to your second question, I refer you to Georgia Code Annotated, Section 92-1407 (e), which provides as follows: "Every person selling motor fuel and/or kerosene at retail shall be entitled to a refund of two per cent. of all taxes imposed by the State 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 subsection. The right to receive any refund under the provisions of this subsection shall not be assignable and any assignment thereof shall be utterly void and of no effect, nor shall any payment thereof be made by the Treasurer of the State to any person, other than the original person entitled thereto selling motor fuel and/or kerosene at retail as hereinabove set forth in this subsection. . . . . . . . . ." From the foregoing statute, it is my opinion that the permit for refund will be granted to the retailer upon application for the same. This refund is based on invoices evidencing his purchases of gasoline. Section (b) of subsection (e) of the Georgia Code, Section 92-1407, allows six months in which application for refund after date of such purchase may be made. I find nothing in our present statutes which allows you to grant refunds for a six month's period previous to the granting of a permit.

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PUBLIC REVENUE-Gasoline Retailers' Refunds A statement purporting to extend a permit beyond the statutory allowance erroneously included in a printed form promulgated by the State Revenue Commissioner, is not binding on the State of Georgia.

October 9, 1950

Hon. D. W. Cleveland, Director Gas Tax Refund Unit

Department of Revenue

FACTS:

OFFICIAL OPINION

Printed refund permit forms for fuel dealers in motor fuel and/or kerosene,

contain the statement, "This permit expires one year from date of issuance."

The statute provides that such permits shall expire at the end of each fiscal year.

QUESTION: Is the State of Georgia bound by the erroneously printed form which is
contrary to the statute?

ANSWER: An applicant for such a permit is presumed to know the law. Section 92-1407
(e) of the Annotated Code of Georgia of 1933, Supplement, provides in part: "..... such permits shall be issued on an annual basis and shall expire at
the end of each fiscal year......" (Emphasis supplied.)

The State Revenue Commissioner has neither the power nor the authority to issue such a refund permit on any basis except as is set forth by the statute. The State of Georgia is not bound by acts of its officers acting beyond their statutory authority. "Powers of all public officers are defined by law, and all persons must take notice thereof......" (Code Section 89-903.)
Therefore, it is my opinion that a statement purporting to extend a permit beyond the statutory allowance erroneously included in a printed form promulgated by the State Revenue Commissioner, is not binding on the State of Georgia.

PUBLIC REVENUE-Homestead Exemption (Unofficial) The homestead exemption is allowed only for that property actually occupied by the claimant as a dwelling place.
March 6, 1950
Hon. M. L. Neal I am pleased to acknowledge receipt of your letter of March 1st, in which
you request an opinion by me as to your eligibility to claim homestead exemption under the facts submitted by you.
I refer you to the Georgia Code Annotated, Sections 92-219, 92-233 (a) (g) and (h), which read as follows:
"92-219. Exemption of home occupied by owner.-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 $2,00{) 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.

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The General Assembly may from time to time lower said exemption to not less than $1,250. 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."
"92-233. (a) The actual permanent place of residence of a person who is the applicant and which constitutes the home of the family."
"92-233. (g) In the event a person who is the applicant owns two or more dwelling houses, he shall be allowed the exemption granted by this law on only one; and only one homestead shall be allowed to one immediate family group.
"92-233 (h) In all the classes above defined, the homestead exempted must be actually occupied as the permanent residence and place of abode by the person awarded the exemptions, and such homestead shall be the legal residence and domicile of such person for all purposes whatsoever."
As you can see, the homestead exemption allowed is only for that property actually occupied by you as a dwelling place. The old homestead as referred to in your letter is not being claimed as a dwelling place, but you merely seek to claim it as a homestead exemption without actually occupying the property. This cannot be done under the law.
After you have filed your application for your homestead exemption, Section 92-228 of the Georgia Code Annotated provides:
"The official receiving said application shall determine the eligibility 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 eligibility and value as provided by law."
As to the amount allowed you in your homestead exemption, from the above quoted statute, it therefore becomes a question of fact to be determined by the board of tax assessors in regard to the amount allowed.
PUBLIC REVENUE-Homestead Exemption (Unofficial) It is not necessary that a person physically occupy property every day in order to claim homestead exemption.
June 12, 1950 Honorable C. F. Colwell, Member Towns County Board of Tax Equalizers
Your letter of June 3 received. You request my unofficial opm10n as to whether a person who maintains his home and is a legal resident of Towns County and who is temporarily employed out of the county but who goes to his home in Towns County on week-ends and at other times, would be entitled to the home exemption provided by law.
In replying to your letter I would like to refer you to the case of Turner v. Board of County Tax Assessors, 71 Ga. App. 374.
The facts in this case were substantially as follows: The applicant made application for homestead exemption in 1938 as provided by law, and since that time had made her returns each year and had been allowed the exemption; that the house on which the exemption is claimed is maintained by applicant as her permanent home, that the legal title is in the applicant, that her personal effects, household goods and kitchen furniture are located therein, that she has maintained her home for about eight years, that she is employed in North Carolina, where she temporarily resides, that she visits her home twice each year and remains

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there for some period of time, and that if her employment outside the state came to an end she would return to her home in Atlanta. The Court in this case then cited the statute, which is the Act of 1937, page 145 (Georgia Code Annotated Section 92-233), after which the Court, in its opinion on page 377, stated:
"A fair and reasonable construction of the statute or contract must always be adopted, giving the language used its ordinary meaning, and taking into consideration the purpose and spirit of the exemption as well as the public policy entertained at the time and the history of the times when the statute was passed. Strict construction does not require that the narrowest possible meaning be given to words descriptive of the exemption. . . . . We do not think there is much, if any, doubt as to the meaning of the provisions of the constitutional amendment.
Its purpose was to exempt the homestead of each bona fide resident of the State from taxation to the extent provided. The provisions for actual occupancy by the owner enter into the definition of bona fide homestead. These words do not mean here, or in everyday life, that the owner must occupy the property in person every day in the year, or a majority of the days of a year. They mean that there must be such occupancy by the owner as is not inconsistent with his ownership and maintenance of the dwelling as his homestead and place of abode. Hence one may actually occupy a home through the agency of others so long as it is maintained as a home, and the control is not changed in character. The emphasis in the words used in the provisions is not on the actual occupancy, but on the provision as a whole, the actual occupancy primarily as a residence or homestead. There may be many citizens of Georgia who are forced by circumstances to live out of the state or out of a particular county, in the business of traveling or war work, or the profession of teaching, etc., who maintain residences, homesteads, and homes in Fulton County, or in other counties."
It is therefore my opinion that any person who owns a home and maintains that home, evidenced by the home being furnished, and who has his legal residence in that particular county, that he may actually live outside of the county a part of the time in carrying out his particular work, he would still be entitled to the home exemption where he had properly made application as provided by law.
It therefore follows that it is further my opinion that the taxpayers who have made proper application and who have met the conditions set out in your letter of June 3, would be entitled to the home exemption.

PUBLIC REVENUE-Homestead Exemption Taxpayer not entitled to homestead exemption if property is not owned on January 1st and if application not made on or before April 1st.

Hon. W. Harvey Atkinson, Director Property and License Tax Unit

September 11, 1950

OFFICIAL OPINION
FACTS: A taxpayer was in possession and had title to a piece of property; made
application for homestead exemption, and was granted the same. Through an error in the tax receiver's office, the applicant for homestead exemption was not credited with the amount of the exemption granted, but the owner paid the taxes on this property and has not filed a protest nor asked for a refund. The new owner of said property, it being sold in September of the year in question, now seeks homestead exemption in the proportion of the total taxes paid. The

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new owner purchased this property on a basis of proportionate taxes for the taxable year.
PROBLEM:
Whether or not one who purchased property toward the end of a year canl ~laim a homestead exemption in the property so purchased.
ANSWER:
As enunciated in the case of The Athens City Waterworks Company v. The Mayor, etc., of Athens, 74 Ga. 413, at page 415:
"Taxation is the rule, and exemption the exception. No property except that specially mentioned can be exempted from taxation ....."
This principle was re-affirmed in the case of Burkett v. The State, 198 Ga. 747, at page 749. Thus, the statute providing for homestead exemption in Section 92-219 et. seq. of the Georgia Code Annotated of 1933, Supplement, being in derogation of the common law, must be strictly construed.
Section 92-220 of the Georgia Code Annotated of 1933, Supplement, provides as follows:
"The person seeking said exemption shall, on or before April 1 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, except that in counties of over 200,000 or more according to the 1940 or any future census, the time of filing written application and schedule for exemption shall be on or before May 1 of the year in which exemption from taxation is sought. (Acts 1937-38, Ex. Sess., p. 145; 1943 p. 101; 1945 pp. 435; 436.)" (Emphasis supplied)
In Section 92-232 of the Georgia Code Annotated of 1933, Supplement, a homestead is defined as"..... real property owned by the applicant on January 1st ....." No question is involved here as to the merits or the legal ramifications of any possible refund which might be due the person owning this property on January 1st who made application for homestead exemption before April 1st. The only question involved is whether or not the new owner who purchased the property toward the end of the year can validly claim a homestead exemption in the property so purchased.
This property was not owned by the new owner on January 1st, nor was any application made before April 1st for homestead exemption. As a matter of fact, the new owner actually purchased the property in September of the taxable year. It is of no import what the agreement was between the old owner and the new owner as to the liability of the taxes due. Taxes accrue on January 1st, and the old owner is responsible for their payment. It is of course elemental that the taxing authority can proceed against either the person or the property. Therefore, it is my opinion that the new owner cannot secure homestead exemption as a whole or any proportion of the total taxes paid, since he did not make application for such exemption on or before April 1st.

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PUBLIC REVENUE-Income Tax Alimony paid to spouse outside of State is deductible for income tax purposes in the State of Georgia.
January 4, 1950 Honorable Fielding L. Dillard, Director Income Tax Unit State Revenue Department
OFFICIAL OPINION QUESTION:
Should there be an income tax deduction for alimony paid by the husband to his spouse when she is out of the State of Georgia? ANSWER:
There are two statutes involved in this question, the first of which is 923109 (j):
"In the case of a husband who is divorced or legally separated from his wife under decree of divorce or of separate maintenance, amounts includable in the gross income of the wife under Section 92-3107 (a) (1), payment of which is made by the husband within the taxable year."
It appears that the crux of this problem is the phrase, "includable in the gross income of the wife." In other words, alimony payments made to the spouse must be returned by her and added into her gross income. This statute raises several questions: Suppose the wife does not receive sufficient income to render her liable for making a return? Suppose the wife moves to another State or foreign country and she is not liable to file any State income tax return. Would these two situations bar the husband from deducting the alimony payment from his income tax?
As you know, the Georgia courts have not passed upon this matter and in my research I was unable to find an exact analogy. I did find, however, that the Attorney General of California has ruled that such payments made to a nonresident wife are not deductible. Apparently his opinion follows a very strict interpretation of the Act and it is easy to see that by a strict construction one would reach this result. However, in giving these acts this strict interpretation, it is my opinion that you would run into grave constitutional difficulties.
In the recent case of The Southern Company vs. Charles D. Redwine, Revenue Commissioner, 206 Ga. 377, the Supreme Court emphasized the constitutional provision that states that all taxation shall be uniform upon the same class of subjects within the territorial limits levying the tax, and further that no state shall deny any person within its jurisdiction equal protection of the law.
Disallowing the deduction of the husband whose wife's gross income did not meet the legal requirements for filing, and disallowing the husband's deduction where the wife lives in another State, in my opinion would be violative of these constitutional provisions. Therefore, I believe that such deduction should be allowed.
PUBLIC REVENUE-Income Tax (Unofficial) The year 1946 was the last year in which exemptions were allowed on income tax returns for members of the Armed Forces.
January 30, 1950 Mr. Nolan Thrift Dear Mr. Thrift:
I am pleased to acknowledge receipt of your letter of January 17th in which

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you request my opinion as to whether or not a personal exemption of $1,500 for income tax purposes has been allowed to Georgia veterans of World War II.
On February 19, 1949, the Georgia General Assembly approved an Act, which supplemented an earlier Act and provided for the computation or recomputation of the income tax returns of all men and women serving in the Armed Forces of the United States between January 1, 1941 and the termination of World War II, so as to allow any sum found to be overpaid to the State Revenue Commissioner to be refunded. The earlier Act provided for certain exemptions during the period between January 1, 1941 and the termination of the War for income tax purposes of members of the Armed Forces, and the Act of 1949 merely provided a method whereby those who failed to claim their exemption could be refunded all amounts overpaid. The year 1946 was the last year exemptions were allowed under these Acts, and neither Act has any effect on the present income tax returns, and I know of no other statute which allows Veterans an exemption on their Georgia income tax returns.

PUBLIC REVENUE-Income Tax

The phrase "and termination of the present war as proclaimed by the President" means with the proclamation of the cessation of hostilities.

Mr. F. L. Dillard, Director Income Tax Unit Department of Revenu.e

September 5, 1950

OFFICIAL OPINION

QUESTION:

What is the meaning of the phrase "and termination of the present war as proclaimed by the President" as used in Ga. Code Ann. Supp. Sec. 92-3303a, which section refers to the granting of an exemption of $1,500.00 of service pay for members of the armed forces?

ANSWER:

The said Section 92-3303a is as follows:

"Any person serving in the armed forces of the United States between January 1, 1941, and the termination of the present war as proclaimed by the President, in making his or her income tax return, may in addition to all other deductions allowed by law, deduct from his or her gross income so much of the compensation received in any year for such services as a member of the armed services of the United States as does not exceed the sum of $1,500.00. The compensation so deducted shall not constitute 'gross income', and shall be exempt from taxation under the income tax laws of this State."

In analyzing the phrase in controversy, it is obvious that the language used is more exacting than that which is generally used in other statutes relating to termination of the war. In other words, most of the statutes enacted relative to the war used the expression that the same would be effective until the "termination of the war", or "termination of the present war", or "termination of hostilities", but the section under discussion goes further than any of these phrases by using the supplementary words "as proclaimed by the President."

Heretofore, I have already ruled that it was my opinion that in the instances wherein my opinion had been sought that the expression "termination of the present war", in effect meant "termination of hostilities." I based this conclusion

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on the three ways which are generally recognized in International Law whereby war may be terminated: (1) By the conquest and subjugation of one of the contending parties by the other so that the former is reduced to impotence and submission; (2) By actual cessation of hostilities; (3) By a mutual arrangement embodied in a treaty of peace.
In seeking the intent of the General Assembly in enacting this law granting an exemption of $1,500.00 of service pay for members of the armed forces, the fact that, in the minds of the general public, the war terminated with the cessation of hostilities, is in itself persuasive that this also was the meaning of the General Assembly by the use of the phrase under discussion. The general rule is that the ordinary signification shall be applied to all words in the construction of statutory enactments, but since the phrase under discussion has the additional words "as proclaimed by the President", we are faced with the problem of whether the legislature intended that this statute be effective until a treaty of peace was proclaimed.
The Georgia appellate courts have never expressed an opinion as to the meaning of the phrase which is used herein, but as previously stated it is certainly the view commonly accepted by the public that war ends with the cessation of hostilities.
We likewise have an additional factor that adds strength to the conclusion reached herein when we consider that the President did proclaim on December 31, 1946, the end of hostilities to the war in which we were engaged with Germany and Japan.
In South Carolina it has been held that a formal declaration by Congress is essential, not only to place the Country in a state of war, but to terminate a state of war theretofore declared to exist, and that a South Carolina Act authorizing public exhibitions on Sunday until six months after the present war has ended contemplated congressional formal declaration of the end of the war and the county and state authorities were powerless to interfere with Sunday exhibitions until then. U.S.C.A. Const. art. 1, Sec. 8-Greenville Enterprise v. Jennings, 41 S.E. 2d 868, 210 S. C. 163.
To the contrary notwithstanding, it is my opinion that the General Assembly did not use the language "termination of the present war as proclaimed by the President" with the technical legal meaning of an official proclamation of peace, but rather with the proclamation of the cessation of hostilities which is the popular and commonly lay accepted meaning of the "termination of war."
This conclusion is supported by the fact that the General Assembly was familiar with this act under discussion and with your official ruling in denying this exemption since December 31, 1946, and has not in its sessions since then passed additional legislation to clarify the phrase under discussion. The General Assembly could easily in its recent session have enacted into law a new phrase as follows: "termination of the present war as proclaimed by the President after a treaty of peace between the United States and Germany and Japan", and in failing to so do, I am confident that the General Assembly intended the expression under controversy and discussion to mean that which I have already expressed herein, that is, that the phrase "termination of the present war as proclaimed by the President" had reference to the proclamation of the cessation of hostilities.


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PUBLIC REVENUE-Income Tax Interest on street improvement bonds issued under Chapter 69-4 of the Annotated Code of Georgia of 1988, is interest within the meaning of Section 92-8107 (b) (5) and therefore, not includable in gross income.
November 8, 1950 Hon. Charles D. Redwine Commissioner of Redwine
OFFICIAL OPINION QUESTION:
Whether interest on street improvement bonds issued under Chapter 69-4 of the Annotated Code of Georgia of 1933, is "interest" under Section 92-3107 (b) (5), and therefore, not taxable.
(b) "The words 'gross income' do not include the following items which shall be exempt from taxation under this law: (5) Interest upon the obligations of this State or of a political subdivision thereof."
Under date of January 5, 1935, the Honorable M. J. Yeomans, the then Attorney General of the State of Georgia, wrote an opinion in which he came to the conclusion that baby bonds issued by the Mayor and Council of the City of Thomasville, were not general obligations of the City of Thomasville, that they were issued and designated as street improvement bonds, that they constituted a lien only upon the property of the abutting property owners, that they were not a lien upon all the property located within the City of Thomasville, and therefore, they were not instrumentalities of a municipality and exempt from taxation. Since this opinion was written, the Honorable M. J. Yeomans and as a matter of fact within about three years from the date of this opinion, several Circuit Courts of Appeal were called upon to decide the very question in light of Federal income tax laws which had almost the exact wording of comparable Georgia income tax statutes. Beginning with the case of Commissioner of Internal Revenue v. Pontarelli, 97 Fed. 2d, 793 in 1938, local municipal improvement bonds were held to be obligations of a political subdivision of a state, and therefore, interest paid thereon was excluded from gross income. In Commissioner of Internal Revenue v. Carey-Reed Company, 101 Fed. 2d, 602 in 1939, a street, road and sewer construction contractor was subjected to .a deficiency income tax assessment due to his not including a sum received as interest by bonds issued by four Kentucky municipalities. The bonds were ".... issued in anticipation of the collection of special taxes ... upon and against the very roads and parcels of real estate fronting and abutting on both sides ... in said city for the payment of the cost of improvement. . . . . ." These bonds constituted liens against only the contiguous property, and were not the general obligations of the city. Yet, the Court held that such interest was exempt from taxation as being "interest upon the obligations of a .... political subdivision."
This view by the Circuit Court of Appeals followed Commissioner of Internal Revenue v. Pontarelli, supra, and began an enlargement of the definition of obligations of a political subdivision far beyond any definition enunciated by the courts of Georgia, or of the United States at the time of the Honorable M. J. Yeomans' opinion. This expanded view has been followed to the present time, although the courts of Georgia have not been called upon to determine the question I believe, that our courts would follow the reasoning of the Federal courts in this matter. For these reasons, I expressly overrule the Yeomans' opinion, and it is my opinion, in view of these recent Federal decisions, that interest on street improvement bonds issued under Chapter 69-4 of the Annotated Code of Georgia of 1933, is interest within the meaning of Section 92-3107 (b) (5), and therefore, not includable in gross income.

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PUBLIC REVENUE-Income Tax Income accrues when all events have occurred which fix its amount (even though the exact amount is unknown as long as it is not unknowable) and determines the liability to pay of the party from whom it is forthcoming.
December 8, 1950
Hon. F. L. Dillard, Director Income Tax Unit Department of Revenue FACTS:
Georgia Taxpayer suffered net loss in 1947, and by reason of said loss, was entitled to a refund of 1945 Federal taxes under carry-back provisions of the Federal law. This claim for refund was determined and accrued on taxpayer's books as of December 31, 1947, and reported on 1947 Georgia income tax return. The claim was not paid until April 1948. Taxpayer used accrual method of accounting. QUESTION:
Under Georgia law and regulations, did the Federal refund become income that accrued in 1947, or did it accrue in 1948? ANSWER:
Georgia income tax regulation 92-3109 (c) provides: "... any refund of Federal income tax is includable in income, when received, to the extent that the proportion of such refund was allowed as a deduction in any previous year." Section 92-3002 (m) of the Annotated Code of Georgia of 1933, provides: "... The word 'received', for the purpose of the computation of the net income under this law, means 'received or accrued,' and the words 'received or accrued' shall be construed according to the method of accounting upon the basis of which the net income is computed under this law." Georgia income tax regulation 92-3118 (a)-2, states: "It is recognized that no uniform method of accounting can be prescribed for all taxpayers, and the law contemplates that each taxpayer shall adopt such forms and systems of accounting as are in his judgment best suited to his purpose. Each taxpayer is required by law to make a return of his true income. He must, therefore, maintain such accounting records as will enable him to do so."
In Finucane vs. U. S., 21 Fed. Supp. 122, the Court held:
"An item of income accrues when all events have occurred which fix its amount and determine the liability of the party from whom it is forthcoming to pay."
In Spring City Foundry Company vs. Commissioner of Internal Revenue, 292 U. S., 182, Chief Justice Hughes, in speaking for the Court, said:
"Keeping accounts and making returns on the accrual basis, as distinguished from the cash basis, import that it is the right to receive and not the actual receipt that determines the inclusion of the amount in gross income. When the right to receive an amount becomes fixed, the right accrues."
The broad rule that when all events have occurred which fix the amount of the tax and determine the liability of the taxpayer to pay, the liability therefor has accrued is enunciated in U. S. vs. Anderson, 269 U. S., 422, but this seems to have been limited in application to claims and liabilities which are reasonably certain in fact, and ascertainable in amount.
The United States District Court for the Northern District of New York in the case of C. A. Durr Packing Company vs. Shaughnessy, 81 Fed. Supp. 33,

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cites with approval, Security Flour Mills Company vs. Commissioner, 321 U. S. 281, as follows:
"It is settled by many decisions that a taxpayer may not accrue an expense, the amount of which is unsettled, or the liability for which is contingent...."
The District Court then states:
"... It appears that a claim may be accrued by a taxpayer for tax purposes when, (a), all of the events have accrued which fix the amount of the claim and determine the question of liability; (b), the amount is readily ascertainable; (c), the liability therefor is determined rather than contingent."
In this case, upon application of the guide-posts above quoted, the Court decided that the facts clearly indicated that the amounts were not readily ascertainable, nor was the right to a refund fixed, and so held against the taxpayer.
In the case of Woodward Construction Company vs. Clark, 82 Fed. Supp. 700, reversed in part, affirmed in part, 179 Fed. 2d, 176, the construction company completed certain work for the Wyoming Highway Department under a contract which contained a clause providing that 15% of estimates due would be retained by the department until completion, plus a 40 day notice period thereafter. The company accrued all sums due, including the 15%, in 1942 upon completion of the work. The 40 day notice period did not expire until January 20, 1943, and the company was paid the 15% on January 21, 1943. The District Court held that the contractor had no right to receive the amount, 15%, in 1942, and therefore, should not have included the sum in 1942 income. The Court of Appeals however, on January 3, 1950, reversed this lower court decision, and stated:
"Where a taxpayer keeps his books and makes his tax returns on the accrual basis, income accrues when all events have accrued from which liability is determined and the liability has become fixed even though payment is deferred to a time in a subsequent year. The decisive factor is the creation of an enforceable liability."
In Frost Lumber Industries, Inc. vs. Commissioner of Internal Revenue, 128 Fed. 2d, 693, the Fifth Circuit Court of Appeals considered these facts: (1) Taxpayer kept books and made income tax returns on accrual method of accounting; (2) taxpayer gave Secretary of Agriculture option to purchase certain land; (3) option exercised by Secretary of Agriculture in 1935; (4) deed voluntarily drawn and recorded by taxpayer in 1935; (5) final determination of exact acreage involved, approval of title, and payment of money in 1936. Upon these facts, the Court decided that "there was a 'closed transaction' in 1935, so that profits from the sale of the land 'accrued' and were taxable in 1935." The Court went on to say "though the computation may be undetermined, if the basis for the computation is unchangeable and though the exact amount may be unknown, if it is not unknowable, the item in such cases is to be treated, for tax purposes, as accrued income."
In Universal Oil Products Company vs. Campbell, 181 Fed. 2d, 451, 471, the Court, in Section 7 of its opinion, discusses at length, accrual of income, and states:
"Vague possibilities that income may have to be returned, or that it may possibly be subject to dimunition or off-set, will not alone suffice to postpone the accrual and reporting of taxable income."
Continental Tie and Lumber Company vs. United States, 286 U. S. 290, involved the question of whether an award to a railroad for an operating deficit during the period of Federal control, was taxable as income in 1920, when the Transportation Act, authorizing the payment, was passed, or in 1923, when the

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amount was determined and paid. The Act prescribed the method of calculating the amount from data which was in existence prior to its passage. The Court held that the right to the award was fixed by the passage of the Transportation Act, and "what remained was mere administrative procedure to ascertain the amount to be paid."
In Commissioner of Internal Revenue vs. Dumari Textile Company, Inc., 142 Fed. 2d, 897, the question was whether a refund of tax on floor stocks held on January 6, 1936, accrued in 1936 under provisions of an Act of Congress of June 22, 1936. The taxpayer's fiscal year ended on June 30, 1936, and the taxpayer accrued the estimated amount of refund prior to the end of its fiscal year, filed claim for payment, but the Commissioner did not pay the claim until 1938. The Commissioner contended that no part of the claim accrued in 1936, because it was contingent on allowance by the Commissioner which was not until 1938. The Court said that this contention seemed to be unfounded, and stated:
"But we cannot see how uncertainty as to the amount of the claim against the government affected the taxpayer's right and obligation to accrue the total amount of income which it was entitled to recover from all sources during the year ended June 30, 1936. The suggestion that the receipt of the correct amount of reimbursement from the government was dependent on filing a claim in time and upon the action of the Commissioner proves too much. All claims for refunds would be incapable of accrual under such an argument." The Court, through Judge Augustus N. Hand, cited as authority, Continental Tie and Lumber Company vs. U. S., supra.
Such cases as Lichtenberger Ferguson Company vs. Welch, Collector of Internal Revenue, 17 AFTR 734, and Forrester, Commissioner vs. Americus Oil Company, 66 Ga.. App. 743, are concerned with claims or liabilities, over which there was disagreement between the taxpayer and the governmental agency, and in cases like these it is almost uniformly held that the claim or liability does not accrue until judgment is rendered by a competent court and all time for appeal has passed.
Here, we are concerned with a claim which the taxpayer has against the Federal government by reason of a "carry-back" statute. The only determination that can be made by the Commissioner is a review for accuracy the taxpayer's returns and forms filed. All facts upon which the claim here is based, existed prior to December 31, 1947, and the determination of the exact amount of refund due was merely ministerial on the part of the commissioner.
It has not been possible to decide the answer to this question by referring to cases decided by our State appellate courts, since the question has never arisen in them, and for this reason, we have had to resort to the Federal jurisdiction for cases decided under similar facts.
For the reasons stated above, in light of the cases quoted, it is my opinion that the right to the refund by the Georgia taxpayer from the Federal government became fixed in 1947, and therefore, accrued in 1947.

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PUBLIC REVENUE-Intangibles Tax Debenture preference stock can not be considered as capital stock for tax purposes, and if illegally taxed, a refund may be claimed anytime within three years from the date of the payment of the same.
April 27, 1950i
Hon. W. Harvey Atkinson, Director Property and License Tax Unit Department of Revenue
OFFICIAL OPINION QUESTION:
What is the liability for tax purposes of debenture preference stock, and if there is no liability, how many years can be considered for tax refund? ANSWER:
"Stock" is distinguished from debentures in that stock gives a right of ownership in part of the assets of the corporation and right to interest in any surplus after the payment of debts. Debenture is security or promise to pay issued by the corporation for a loan of money, and creates a charge on the corporation's stock and property. Therefore, it is my opinion that debentures could not be considered in the capital stock of the corporation for the purpose of ascertaining the amount of tax due based on the issued capital stock.
I am of the opinion that the document labeled "debenture preference" enclosed in your letter, is a debenture under the above definition. Considering this as a debenture, it would not be liable for tax purposes as part of the capital stock. I refer you to Georgia Code Annotated, Section 92-8436, (a) and (b) providing for refund and procedure for the granting of the same. I quote you the pertinent part of Section (b) relative to the years for which refund may be made:
"In any case in which it shall be determined that an erroneous or illegal collection of tax or license has been made by the Commissioner, the taxpayer from whom such tax or license was collected may, at any time within three years after the date of the payment of same to the State Revenue Commissioner, file a claim for refund, etc......"
From the above provision, I am of the opinion that the claimant in this particular case may file his claim for refund for the past thjee years.
PUBLIC REVENUE-Intangible Tax Associations meeting the requirements of the Constitution for exemption are not liable for intangible tax.
May 26, 1950
Honorable Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION FACTS:
"The said corporation is not organized for pecuniary gain or profit and shall have no capital stock and no shareholders, and no trustee or other individual, shall at any time have any interest in the earnings or income of the corporation. No dividends or returns of any character, nor any part of the assets of the corporation, shall ever be returned to any of the incorporators, or to any trustee."
"The said corporation will be organized and operated exclusively for religious, charitable and educational purposes, or any one or more of such purposes. No part of the net earnings of the corporation shall inure to the benefit of any of the

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incorporators, or of any individual. No part of the activities of the corporation shall be carrying on propaganda, or otherwise attempting to influence legislation."
"The purposes of the corporation shall be carried on in the aid of individuals, groups, classes of the public and the public at large, by such methods and upon such conditions as the trustees may from time to time determine, within the limits and authority of this charter, both within and without the said county."
"The said corporation shall have all rights and powers customary or proper for charitable corporations, as well also as those herein specifically set forth."
It further appears that the Association purchased 1500 acres of land in Russell County, Alabama, for the specific purpose of developing a free park for the employees of the various enterprises constituting the Association.
Moreover, it appears that the taxing authorities in the State of Alabama have ruled that the Association is strictly a charitable corporation and not liable for ad valorem taxes on the property located in that state.
QUESTION:
Is the Bradley Benevolent and Educational Association liable for state intangible taxes'?
ANSWER: The Intangible Tax Act (Georgia Laws, 1937, 38, page 156) provides in
part that:
"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 ... are exempt from the tax imposed by Section 3 of this Act."
The records in this department disclose that we have previously given an informal opinion holding this institution not to be one of a purely charitable nature for tax purposes. This informal opinion is based upon the reasoning in the case of Richardson v. Executive Committee of The Baptist Convention, 176 Ga. 705. I find it difficult to reconcile the instant problem with that case even under the Constitution of 1877. The Court in that case maintained that even though some charitable work was done by the Baptist Hospital, yet a substantial amount of their incomaowas derived from pay patients, and that the operation of the hospital was not one of public charity.
Notwithstanding this position, the Supreme Court in the case of Elder v. Henrietta Egleston Hospital for Children, 205 Ga. 489, in effect overruled the Richardson case, supra, using as a basis for its decision the 1945 Constitution. I find that I rendered an opinion in 1948 to the effect that this Association was not liable for State income taxes.
I have no facts that would justify the assumption that the operation of this Association is designed to technically avoid tax liability. The Association has met all of the legislative and constitutional requirements for exemption under the provisions of the 1945 Constitution.
Therefore, based upon the foregoing facts and the law cited, it is my opinion that the Bradley Benevolent and Educational Association, Inc., is not liable for intangible taxes under the Georgia law, and I recommend that the pending litigation be properly dismissed without prejudice.

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PUBLIC REVENUE-Intangibles Tax There is no intangible tax liability on contingent commissions on insurance premiums when no debtor-creditor relationship exists to cause the sums to be bona fide "accounts receivable."
October 23, 1950
Hon. W. Harvey Atkinson, Director Property and License Tax Unit Department of Revenue
OFFICIAL OPINION
QUESTION:
"What is general agent A. H. Turner's tax liability on contingent commissions due by reason of premiums owing local agents of insurance companies, which are receivables to said local agents as a result of credits extended by them for the insurance companies?"
ANSWER:
Section 102-102 of the Annotated Code of Georgia of 1933 provides:
"1. The ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject-matter."
Accounts receivable are generally thought of as being obligations which have not been finally settled or closed, but are still running or open to future adjustment or liquidation, yet all conditions necessary to create the relationship of debtor and creditor have fully ripened.
As late as November 16, 1949, the United States Court of Appeals for the 8th Circuit in the case of Twin City Fire Insurance Company vs. Green, 176 Fed. 2nd. 532, stated that agency provisions of a contract between insurance companies and general agents respecting payment of premiums, do not manifest an intent to create a debtor and creditor relationship between the companies and the agent.
The law generally has recognized an insurance agent, charged with the duty of collecting premiums and not granted the right by his contract to use the funds personally, as having prima facie a fiduciary responsibility. See, 16 Appleman Insurance Law and Practice, Section 8786, pp. 224, 225. This general enunciation of the law was recognized as the law of Georgia in the case of United States Fidelity Company vs. Sexton, 134 Ga. 56, and cited with approval by Judge Deaver in the case of Alliance Insurance Company et al. vs. City Realty Company, 52 Fed. 2nd, 271, and also approved in Twin City Fire Insurance Company v. Green, supra.
Therefore, I am of the opinion that A. H. Turner, general agent, is not liable for said intangible taxes for the reason that the sums in question are not bona fide "accounts receivable," because no debtor-creditor relationship has come into being between A .H. Turner and the insured, or the local agent, until said local agent shall have in hand the premiums due the insurance company.

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PUBLIC REVENUE-Intangibles Tax A foreign corporation is not an individual citizen of Georgia and is therefore not taxable at the same rate which is applicable to national banks, but rather, is taxable under Section 92-118 of the Annotated Code of Georgia of 1933, intangiblewise.
October 23, 195{)1
Hon. W. Harvey Atkinson, Director Property and License Tax Unit Department of Revenue
OFFICIAL OPINION FACTS:
Universal C.I.T. Credit Corporation is a corporation organized under the laws of the State of West Virginia with its principal office at Charleston, West Virginia. It is primarily engaged in the business of automobile and motor vehicle financing by buying from and through automobile and motor vehicle dealers purchase money notes, contracts or chattel mortgages covering the purchase of such items. The corporation engages in and is licensed to do business in eight states of the United States, one of which is the State of Georgia. In the State of Georgia, it has eight offices, one of which is located in the City of Waycross, Ware County, Georgia. The tax assessors in and for Ware County have assessed the notes and accounts receivable of said corporation's Ware County office so as to be taxed as "moneyed capital in the hands of individual citizens of Georgia in competition with national banks", instead of as intangibles.
QUESTION: Whether or not Universal C. I. T. Credit Corporation is so taxable.
ANSWER: Section 92-120 of the Annotated Code of Georgia of 1933 provides: ".... all
moneyed capital in the hands of individual citizens of Georgia coming into competition with the business of national banks shall be subject to tax at the same rate which is applicable to said national banks......" (Emphasis ours)
Under the above set of facts, it is only necessary to determine whether or not the corporation in question comes within the purview of the statute as being "an individual citizen of Georgia."
The courts of Georgia have not defined the words, "individual citizen," but in a well reasoned decision in Primm vs. Fort, 57 S. W. 972, 23 Tex. Civ. Apps. 605, that court said:
"The term 'individuals,' in a state statute providing that national banks shall not be taxed at a greater rate than is assessed against other moneyed capital in the hands of individuals, is of the same meaning as the term 'individual citizens' in Rev. St. U. S. Sec. 5219, 12 U. S. C. A., Sec. 548, providing that the taxation of national banks shall not be at a greater rate than is assessed on other moneyed capital in the hands of individual citizens. Neither term can be construed to include corporations.
"'Citizens,' within the meaning of Rev. St. U. S. Sec. 5219, 12 U. S. C. A. 548, providing that the taxation of national banks shall not be at a higher rate than assessed on other moneyed capital in the hands of individual citizens of the state, means natural persons, and not corporations. The term 'individual citizens' in this section is not substantially different from the term 'individual' in the state statute, which only differs from the statute quoted in substituting the word ''individual' for the words 'individual citizens.' "
It is therefore my opinion that Universal C. I. T. Credit Corporation is not

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an individual citizen of Georgia, and is therefore not taxable at the same rate which is applicable to national banks, but rather, is taxable under Section 92-118 of the Annotated Code of Georgia of 1933, intangiblewise.
PUBLIC REVENUE-License Tax A person selling used automobile parts is a junk dealer and subject to the junk dealer's tax.
March 6, 1950
Hon. W. Harvey Atkinson, Director Property and License Tax Unit Department of Revenue
OFFICIAL OPINION QUESTION:
Is a person who makes retail sales of used auto parts a junk dealer as contemplated in the tax on junk dealers? ANSWER:
In reference to the legality of his classification as a junk dealer, I refer you w the Georgia Code Annotated, Section 84-2504, which defines a junk dealer as follows:
"As used in this Chapter, the term 'junk' shall have the following meaning: Any used article of commerce which is composed principally of iron, steel, brass, copper, zinc, or their alloys, or any other base metals, and which is commonly bought for the purpose of resale and refabrication, either one or both.
"The term 'junk dealer,' as used in this Chapter, shall be held to mean any person, firm or corporation, or officer, agent and employee of any person, firm or corporation who engages in the purchase of used articles of commerce principally composed of iron, steel, brass, copper, zinc, or their alloys, or any other base metals, when the same is bought for the purpose of resale and refabrication, either one or both."
From the above-quoted section, it necessarily follows that a dealer in used auto parts would be a junk dealer as it is so defined.
PUBLIC REVENUE-Motor Fuel Tax Liquid Petroleum Gases, which come within the definition of "Motor Fuel", are subject to the Motor Fuel Tax, regardless of use.
April 24, 1950 Honorable Charles D. Redwine Commissioner, Department of Revenue
OFFICIAL OPINION FACTS:
"Large quantities of Liquid Petroleum Gases, such as Butane and Propane, are being sold and used in the State of Georgia. We are advised that these products come within the distillation range prescribed for gasoline and may be subject to the Georgia State Motor Fuel Tax regardless of use.
"We have been assessing the Motor Fuel Tax against these products when used only as a fuel for the propulsion of motor vehicles on the public highways. QUESTION:
"We would like to know if we are assessing this tax correctly, or should it be assessed on the distillation specifications."

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ANSWER: Motor fuel, as defined in Section 92-1402 of the Code of Georgia Annotated,
pocket part, includes any liquid of a kind prepared, advertised, offered for sale or sold for use as, or used as, a fuel for internal combustion engines, except kerosene or any other petroleum product with a flash of more than 100 degrees Fahrenheit or with an initial boiling point of 200 degrees Fahrenheit, or over, unless used as a fuel for the propulsion of motor vehicles on the public highways.
Therefore, it is my opinion that inasmuch as Butane and Propane gas come within the definition of "motor fuel", as above defined, when either Butane or Propane gas is sold for use and/or is used as a fuel for internal combustion engines they would be subject to the motor fuel tax, whether or not used on the public highways.
PUBLIC REVENUE-Motor Fuel Tax (Unofficial) Municipalities are not exempt from the tax on Motor Fuel.
February 28, 1950 Hon. James W. Moore, City Manager City of Douglas
You ask whether or not municipalities are exempt from the payment of tax on gasoline used mainly for opening and maintaining city streets, and what would be the procedure in getting such exemption or refund for such tax paid.
The Court of Appeals of Georgia has held in the case of Sloan vs. Polk County, 70 Ga. App. p. 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 exception 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 Tax Reciprocal agreements between Georgia and other states control the question of requiring "For Hire" tags of out-of-state truck lines.
March 21, 1950 Honorable W. L. Joiner, Assistant Director Motor Vehicle License Unit Department of Revenue
OFFICIAL OPINION QUESTION:
Is this unit authorized to require owners of out-of-state trucks engaged in interstate commerce to obtain a Georgia "For Hire" tag upon unloading in Georgia and then reloading to transport merchandise to a State other than their home State? ANSWER:
The authority under which you act is found in Georgia Code Sections 68-217 and 68-1001. From a study of these two sections, I am of the opinion that the 2onduct of the licensing authorities of Georgia in relation to out-of-State truck lines operating in Georgia depends wholly and entirely upon the conduct of the mother state of the trucking association-that is, the State under whose laws

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the trucking association is operating. The reciprocal agreement between this State and the State of Georgia determines acts of our agents in either requiring or not requiring the trucks to obtain a Georgia for hire tag.
As to the question of particular interest to you dealing with the operation of the trucks in Georgia, their reloading in Georgia, and transportation of merchandise to a State other than their home State, I am of the opinion that the reciprocal agreement with the home State would still govern, and that your authority to either require or not require a for hire tag would depend entirely upon this agreement.
PUBLIC REVENUE-Motor Vehicle License The sheriff is without discretion in collecting or not collecting the penalty or his fee for the failure to register a motor vehicle.
May 8, 1950
Hon. W. L. Joiner, Assistant Director Motor Vehicle License Unit
OFFICIAL OPINION QUESTION:
"In some instances sheriffs are submitting applications showing registration and the 20% penalty, but fail to show sheriff's fee of $1.00. If an operator is delinquent, under the law, would the sheriff have the right to waive the sheriff's fee, or any portion of the penalty? If one is delinquent, would the Motor Vehicle Unit accept the penalty and permit the sheriff to waive his fee of $1.00, or any portion of the penalty?"
ANSWER: The Georgia Code Annotated, Section 68-201 was amended for the pur-
pose of substituting the month of April for the month of February, and provides for the fee to be collected by the sheriff and the penalty to be imposed. The applicable part of this statute to your questions is as follows:
"Provided, that on and after the second day of February in each year every owner of an automobile, truck, or trailer, registered for the previous year, who shall have failed to comply with the provisions of this section, shall be deemed and held to be a delinquent under the provisions of this section, and the registration of such automobile, truck, or trailer shall, on the said second day of February and thereafter, be subject to a penalty of 20 per cent. of the registration fee for said automobile, truck, or trailer, in addition to the fee herein provided; and all applications made to the State Revenue Commission for registration of such delinquent automobile, truck, or trailer shall, before being accepted by the State Revenue Commission, be first indorsed by the sheriff of the county wherein the delinquent applicant resides, and not by an officer of any other county;. and for l"aid indorsement the sheriff shall first receive from the applicant the sum of $1, and the sheriff indorsing such delinquent application shall indicate, with his indorsement on said application, the total amount of the prescribed registration fee together with the 20 per cent. penalty herein provided, and the full total of such amount shall be remitted or paid to the State Revenue Commission before any license tag or serial number as provided for in this law shall be assigned to said applicant. . ......"
This statute is not in itself a tax statute, but rather one of a regulatory nature. From the words employed, it is my opinion that no discretion is vested in the sheriff in collecting or not collecting the penalty or his fee, as the words employed are those of command and not discretion.

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PUBLIC REVENUE-Motor Vehicle License Unit License fees voluntarily paid for motor vehicle license plates cannot be recovered when the owner of such vehicles later decides not to operate said vehicles within the State.
August 31, 1950
Hon. Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION FACTS:
Southeastern Greyhound Lines purchased from the Motor Vehicle Unit, five license plates to be used on buses which were to be operated in the State of Georgia. The plates were put on the buses, but the bus line decided not to operate these buses in Georgia, and they have not, in fact, operated within the State. Southeastern Greyhound Lines has made a request for a refund on these license plate fees. PROBLEM:
Does the Revenue Commissioner have the authority and right to make such a refund? ANSWER:
Section 92-2902 of the Annotated Code of Georgia of 1933, Supplement, provides as follows:
"The annual fees for the licensing of the operation of vehicles shall be as follows for each vehicle registered:
" (9) For each motor bus (used as a common or contract carrier for hire), the following: ......"
In the case of Burkett vs. The State, 198 Ga. 747, the Court stated on page 750, the following:
"We conclude that the registration fee provided for in the motor-vehicle registration law is nothing more than a license fee and that the act is not in essence a revenue-raising measure, and that therefore the imposition of the registration fee does not amount to the levying of a tax against public property, under the facts of this case."
In the case of The Commissioners of the Town of Thomson vs. Norris, 62 Ga. 538, the Court stated on page 543, the following:
"Therefore, we lay down the principle announced in the syllabus at the head of this opinion, that where the corporation has jurisdiction over the subject matter of the grant of license to retail liquors, and the amount of the fee is paid voluntarily, without execution issued therefor or compulsory process of any sort, or even threat to issue such process, the party so paying more than was authorized except by an amendment of the charter afterwards declared unconstitutional, cannot recover back the overplus."
In Tatum vs. The Town of Trenton, 85 Ga. 468, the Court concurred with this principle, and quoted with approval Cooley On Taxation (2d., p. 809) as follows:
"That a tax voluntarily paid cannot be recovered back, the authorities are generally agreed. And it is immaterial in such a case that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it back. Especially is this the case when the officer receiving the money, who is chargeable with no more knowledge of the law than the party

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making payment, is not put on his guard by any warning or protest, and the money is paid over to the use of the public in apparent acquiescence in the justice of the exaction."
Section 20-1007 of the Annotated Code of Georgia of 1933 provides as follows:
"Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule."
This section is exactly the same language found in the Civil Code of 1910, which had been adopted in the Code of 1895. The Court of Appeals in Taranto et al. v. Richardson, Tax Collector, 50 Ga. App. p. 851, states that this Code Section is apparently a codification of Thomson vs. Norris, Tatum vs. Trenton, and other similar holdings.
The Constitution of the State of Georgia of 1945 (Section 2-1911, Par. 11) provides as follows:
"No money shall be drawn from the Treasury except by appropriation made at law."
However, Section 92-8436, sub-paragraph (a) of the Annotated Code of Georgia of 1933, Supplement, provides:
"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, whether paid voluntarily or involuntarily and interest thereon at the rate of six per cent per annum from the date of payment of same to the State Revenue Commissioner. Such refunds shall be drawn from the treasury on warrants of the Governor issued upon itemized requisition showing in each instance the person to whom the refund is to be made, the amount thereof and the reason therefor."
This language clearly limits refunds made to "such taxes which may be determined to have been erroneously or illegally assessed and collected." (Emphasis supplied) There was no error as to the license fee, no contention as to its illegality, no mistake of fact, and no ignorance of the law. The bus line merely decided not to use these five buses within the State. It is clear that the statute providing for refunds does not apply to this situation, and it is my opinion that these license fees cannot be recovered by the bus line.
PUBLIC REVENUE-Motor Vehicle License Unit Reciprocal agreements determine the use of "For Hire" tags on motor common carriers domiciled in another State, but operating through Georgia.
September 25, 1950
Hon. W. L. Burch, Director Motor Vehicle License Unit Department of Revenue
OFFICIAL OPINION FACTS:
A motor common carrier domiciled in the State of Florida has been operating equipment licensed in states other than the states of Georgia and Florida under

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what is known as "spot lease" or single operation in the transportation of property for hire between points in the State of Georgia and the State of Florida.
QUESTION: Should these vehicles display Georgia revenue tags?
ANSWER: This question has been resolved by two recent opinions, the first dated March
21, 1950, as follows:
"Licensing requirements of out-of-state truckers operating in Georgia are wholly dependent upon the reciprocal provisions between Georgia and the State under license of which the trucking company operates. These provisions govern in the requirements of 'for hire' tags, reloading in Georgia and transportation of merchandise into a state other than the home state."
The second dated July 12, 1950, provides as follows: "Where equipment operated by a Florida-Georgia motor express company is licensed in a third state, but not licensed in either of the states parties to the reciprocal agreement, the reciprocity allowed by the third state not a party to the reciprocal agreement between Florida and Georgia, depends upon the reciprocal agreement between Florida and the third state, and Georgia and the third state."

PUBLIC REVENUE-Motor Vehicle License Unit A motor common carrier domiciled in Georgia must display a Georgia license tag, even thoungh engaged in interstate commerce.

Hon. W. L. Burch, Director Motor Vehicle License Unit Department of Revenue

September 25, 1950

OFFICIAL OPINION
FACTS: A motor common carrier domiciled in the State of Georgia uses equipment
licensed in the State of Alabama in the transportation of interstate shipments of freight collected both from the State of Alabama and the State of Georgia, and possibly from other states for delivery to points in Georgia.

PROBLEM: Should these vehicles display Georgia revenue tags?

ANSWER:
A motor common carrier is relieved from purchasing and displaying Georgia revenue tags for the sole reason that such a vehicle is owned by a person, a legal resident of, or maintaining a principal office within a state with which Georgia has a reciprocal agreement.
A motor common carrier domiciled in the State of Georgia must comply with the laws of Georgia, and therefore must display Georgia revenue tags as provided by Section 92-2902 of the Annotated Code of Georgia of 1933.

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PUBLIC REVENUE-Motor Vehicle License Unit 1. When a license tag has been issued for a vehicle, there is no refund, even though the vehicle may later be wrecked and the tag not used. 2. When two tags have been issued for the same person and car, there is a refund allowed for one of them. 3. Once a tag has been issued for a vehicle, there can be no refund just because the applicant changed his mind. 4. When two tags are issued to two people for the same car, one is refundable. 5. When a "For Hire" tag is ordered through mistake, in the place of a "Not For Hire" tag, a refund is allowable. 6. Where a person orders a tag through mistake, for a car he does not own, there is a refund allowed.
October 24, 1950
Hon. W. L. Joiner, Assistant Director Motor Vehicle License Unit Department of Revenue
OFFICIAL OPINION FACTS:
(a) An owner makes application for license tag for truck, or trailer, or passenger car. Later, claiming that the motor vehicle had been wrecked or retired, and would not be used again, he returns the tag, requesting a refund.
(b) Some owners, claim that through error, they send in two applications for tags for the same car. Later one of the tags is returned to this office requesting a refund because two tags had been issued to the same person for the same car.
(c) An owner makes application for a truck or car tag. Within a few days he writes us that the truck or car has been sold to someone living in another state, that the tag cannot be used. He either countermands the order or returns the tag, requesting a refund.
(d) Two different people make application for tags for the same car. Tags are issued to both parties. Later one of them returns his tag, claiming that he ordered the tag through error and on that basis he asks for a refund.
(e) An owner sends in an application and $15.00 fee for one ton truck tag "For Hire." After a period of 30 days or more, he writes this office that through an error he ordered "For Hire" tag when he should have ordered "Not For Hire" tag. On that basis he requests a refund of $10.00.
(f) An applicant buys a new car, a tag is issued for the car, and several days later he changes his mind and takes another car and requests this office to issue him a refund. The law makes provision for a transfer in such cases, but the dealer does not want a transfer because it leaves an impression upon the next buyer that the car is second hand.
(g) Application is made for a tag; the tag is i~;>sued and mailed. Several weeks later applicant returns the tag stating that the car was disposed of in the previous year and that it was ordered through error.
ANSWER: The general rule is enunciated by Section 20-1007 of the Annotated Code of
Georgia of 1933, as follows:
"Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an

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immediate seizure of person or property. Filing a protest at the time of payment does not change the rule."
Money so paid may be recovered back if it was paid through mistake or ignorance of facts which show no legal liability to pay, but on the other hand, payments made with full knowledge of the facts but with ignorance of the legal rights of the party paying are voluntary and cannot be recovered back.
Section 92-8436 (a) of the Annotated Code of Georgia of 1933 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........"
Subsection (b) of this same Code Section provides for the procedure in granting such refunds.
(a) Section 92-2907 of the Annotated Code of Georgia of 1933 provides:
"The annual licenses and tags issued for the operation of vehicles described in subsections 3 to 14 of Section 92-2902, may, with the approval of the Revenue Commission, be transferable from a destroyed or retired motor vehicle, to another vehicle upon payment of a transfer fee of 50 cents, and upon presentation of an appropriate application for transfer, to be approved by the Revenue Commission: Provided, if the substituted vehicle normally calls for a higher priced tag than the vehicle displaced, a proportionate additional fee shall be paid for the remainder of the taxable year."
Thus, if the vehicle in question is one described in subsections 3 to 14 of Code Section 92-2902, then the tag can be transferred. It is my opinion however, that no refund can be granted. None is provided for in such cases.
(b) It is my opinion that since an application for a license plate for a vehicle which is already properly licensed is a license erroneously assessed and collected, in addition to the fact that it is a license paid through mistake or ignorance of the facts, that it is refundable upon the filing of a proper claim under the above mentioned Code Section.
(c) An application may be withdrawn and the fee paid with said application refunded. However, if the application has been granted and the license issued, no refund is proper for the reason that no license was erroneously assessed and collected. There was no misapprehension of any fact or facts, but merely a change of mind.
(d) It is my opinion that since an application for a license plate for a vehicle which is already properly licensed is a license erroneously assessed and collected, in addition to the fact that it is a license paid through mistake or ignorance of the facts, that it is refundable upon the filing of a proper claim under the above mentioned Code Section.
(e) For the reason that the license was erroneously assessed and collected and the mistake was a mistake of fact, a person is entitled to a refund. Of course I predicate this upon the assumption that the truck was a "Not For Hire" vehicle from the beginning.
(f) There has been no mistake of fact and no license erroneously assessed and collected. In this case, there has been only a changing of one's mind, and therefore, there can be no refund.
(g) In this instance, there was a mistake of fact and no legal liability to pay. The license was therefore erroneously assessed and collected, and therefore, there should be a refund.

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PUBLIC REVENUE-Motor Vehicle License Unit School buses used to transport teachers to and from instructional periods are operated within Code Section 92-3902 (15).
October 30, 1950 Hon. W. L. Joiner, Assistant Director Motor Vehicle License Unit
OFFICIAL OPINION FACTS:
School bus jointly owned by county and private individual, operates every Saturday between Newnan and Fort Valley, taking negro school teachers to a school whose purpose is training them to become better teachers. No charge is made except for gasoline burned. QUESTION:
Can such school bus properly operate under license fee as set forth in Section 92-2902(15) of the Code of Georgia of 1933, Annotated_ ANSWER:
Code Section 92-2902 (15) provides: "School bus. For each school bus operated exclusively in the transportation of pupils and teachers to and from schools or school activities, or the transportation of the owner and the members of his immediate family, the sum of $2.50." It is my opinion that the statute leaves no doubt but that this use of the school bus constitutes "school activities," and since the bus is used to transport teachers, then such use comes within the purview of the quoted Code Section.
PUBLIC REVENUE-Motor Vehicle License Unit Motor vehicles may be operated over the highways of this State for a period of 30 days by non-residents who have complied with the registration laws of the State or territory of their domicile, irrespective of the nature of their business done within this State.
October 31, 1950; Hon. W. L. Joiner, Assistant Director Motor Vehicle License Unit
OFFICIAL OPINION QUESTION 1. Would a motor vehicle operated by a nonresident who comes into Georgia, accepts employment and makes Georgia his home, come within the provision allowing nonresidents to operate their vehicles for a period of 30 days without purchasing Georgia license plates? QUESTION 2. Would the 30 day clause apply to contractors who have been awarded contracts for road work and other purposes in this State, which would possibly last six to nine months? ANSWER 1. YES. Such a vehicle would not be subject to license fee for a period of 30 days, unless the owner thereof legally domiciled himself in Georgia within such 30 day period allowed nonresident operators of motor vehicles to register same. ANSWER 2. The 30 day clause would apply to contractors who are nonresidents, and their vehicles would not become subject to license fees until 30 days after coming within the State.

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To answer the two questions propounded, Section 68-221 of the Georgia Code Annotated must be properly construed. This Section reads as follows:
"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 register and obtain a license to do so or a chauffeur's license: Provided, that the owner or owners 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 registration number and initial letter of such State or Territory shall be displayed 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 vehicle within this State under a license issued by another State."
By reading the above section, it becomes quite evident that motor vehicles owned by nonresidents are not subject to motor vehicle license fees for a period of 30 days after coming within the State, provided, such vehicle is properly registered in the State of their residence. Such 30 day period would apply to all motor vehicles owned by nonresidents, regardless of whether or not a nonresident owner was a contractor engaged in road building within this State. If, however, a nonresident owner of a vehicle uses same for more than 30 days in the State of Georgia, he is subject to the provisions of law requiring. owners of motor vehicles to obtain a license to operate such vehicles over the highways of this State.
The owner of a vehicle may, however, become subject to registration and should obtain a license therefor upon entering the State of Georgia if it is determined that such an owner has legally domiciled himself in this State. Such a determination would have to be derived from facts and circumstances in each individual case. It may be pointed out that a person could actually reside within this State for an indefinite period of time, and would not be a legal resident of the State of Georgia, and conversely, a person could come into this State and immediately become a legal resident.
PUBLIC REVENUE-Motor Vehicle License Tax (Unofficial) A motor vehicle registered in Georgia is liable for property tax even if it has never been in the State.
January 3, 1950 Major Robert R. Renfro
I am pleased to acknowledge your letter of December 11, 1949 in which you requested information on the taxability of an automobile that has been registered in Georgia, but has never been out of the State of Washington.
As you know, the Soldiers' and Sailors' Relief Act provides that members of the Armed Services do not have to buy a new automobile tag when they are transferred from one post to another, but on the other hand when a man in the Armed Services registers his car in a State, it is presumed that that is the State of his domicile. Therefore, he is liable in that State for property taxes on the car for the year involved. I am quite sure that the officer who registered his car in Georgia is not paying any property taxes on that car to the State of Washington.
The Soldiers' and Sailors' Relief Act does not provide immunity from taxes to members of the Armed Services, but only prevents double taxation.

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PUBLIC REVENUE-Motor Vehicle License Unit (Unofficial) If a non-resident operates a motor vehicle within Georgia for more than 30 days, then such person must register the same and obtain a driver's license.
January 3, 1950
Miss Norma E. Hughey This will acknowledge receipt of your card addressed to the Chamber of
Commerce, Atlanta, Georgia, which found its way to the State Department of Commerce, State Capitol, Atlanta, Georgia, and in turn was forwarded by Honorable Clark Gaines to the Attorney General's office for reply to your inquiry concerning the regulations of house trailers in Georgia.
Georgia law provides that it shall be unlawful to operate upon any public road or public highway in this State any vehicle or vehicles which do not conform to the uniform standard specifications which have been adopted by the American Association of Highway Officials and the United States Bureau of Public Roads. (Section 68-405 of the Code of Georgia of 1933, Annotated, Pocket Part.)
Georgia law further provides: "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 register and obtain a license to do so or a chauffeur's license: Provided, that the owner or owners 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 registration number and initial letter of such State or Territory shall be displayed 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 vehicle within this State under a license issued by another State. (Acts 1927, p. 235.)" Except as provided within the above quoted section of the Code, you would be required to purchase a motor vehicle license tag for both your automobile and your house trailer. I would suggest that you contact your local American Automobile Association (AAA) for a guide and information concerning the various trailer camps located within the State of Georgia.
PUBLIC REVENUE-Non-residents (Unofficial) Taxing statutes involving non-residents.
March 21, 1950
Col. William R. Woodward This will acknowledge receipt of your letter of March 11, 1950 in which you
state as follows: "I consider myself a legal resident of Virginia, I pay state and county taxes
including my automobile to the Commonwealth of Virginia. Since my wife owns property and pays all due taxes in Georgia it is necessary for me to spend considerable time in Georgia.
"I request your office render an official opinion as to how much time I can spend in Georgia without legally becoming a resident of Georgia and consequently paying automobile and other state and county taxes."
The Attorney General cannot under the law render official opinions to anyone except the Governor and heads of the various departments of State. However, I am glad to quote you the following provisions of law in an effort to be of help

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to you, although your tax liability is a matter to be determined by the taxing authorities.
The law provides under Section 92-101 of the Code of Georgia of 1933 as follows:
"All real and personal property, whether owned by individuals or corporations, resident or nonresident, shall be liable to taxation, except as otherwise provided by law."
Section 92-105 of the Code provides: "Nonresident owners of property, liability of.-Lands or other property belonging to citizens of the United States, not residents of this State, shall not be taxed higher than the property of residents, but such nonresidents, whether their property in this State is real or personal, shall pay taxes on the same herein." Section 92cllO of the Code provides: "Taxes charged against whom.-Taxes shall be charged against the owner of property if known, and against the specific property itself if the owner is not known. Life tenants, and those who own and enjoy the property, shall be chargeable with the taxes thereon. Hence, while the public may treat property as belonging either to the maker or the holder of a bond for title when the latter is in possession, yet as between the parties the one receiving the rents or enjoying the use shall be liable for the taxes."
The Intangible Tax Act makes the following provision: "92-121. Persons subject to tax on intangibles.-Every resident or nonresident person, including partnerships whose members are in whole or in part nonresidents of this State, is declared to be subject to the tax imposed in this law (Sees. 92-113 to 92-159, 92-9946) on so much of his property taxable under sections 92-116 to 92-122 as shall have been acquired in the conduct of, or used incident to, business carried on or property located in this State. Each such person shall report such property and pay taxes thereon as provided by law for citizens of this State." 92-122. Taxable situs in another State.- Intangible property, including money, owned by a person domiciled in Georgia, which has acquired a taxable situs and is subjected to tax in another State incident to the conduct of business located in the said other State, shall not be deemed to be taxable under the provisions of sections 92-116 to 92-122." With reference to your residence and domicile, I quote you as follows: "79-401. (2181) Place of.-The domicile of every person of full age, and laboring under no disability, is the place where the family of such person shall permanently reside, if in this State. If he has no family, or they do not reside in this State, the place where such person shall generally lodge shall be considered his domicile." "79-406. (2186) Change of domicile; intention.-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."
I want to also call your attention to Section 68-221 of the Code, which reads as follows:
"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 register and obtain a license to do so or a chauffeur's license: Provided, that the owner or owners 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 registration number and initial letter of such State or Territory shall be displayed and plainly visible on such vehicle or vehicles. In other respects,

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however, motor vehicles owned by non-residents 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 vehicle within this State under a license issued by another State."

PUBLIC REVENUE-Revenue Anticipation Certificate (Unofficial) Revenue anticipation certificates issued by a municipal corporation are not taxable by the State or any political subdivision thereof.
September 15, 1950 Honorable E. D. Drury, Clerk Town of Woodbine
I am in receipt of your letter of August 30, in which you state that the town of Woodbine plans to sell to private individuals revenue anticipation certificates in the sum of $15,000.00 in order to finance the construction of a gymnasium, and that you would like to know if these certificates are taxable by the State of Georgia, its municipalities or political subdivisions.
In the case of Williamson vs. Housing Authority of Augusta, et al, 186 Ga. 673, at page 691, the court said:
"Bonds issued by a municipality of this State are not taxable by this State or any county thereof. The bonds are merely taxable by the force of the constitution itself."
It makes no difference whether the evidence of debt be bonds or revenue anticipation certificates. The principle is exactly the same. In Penick, taxcollector, vs. Poster, executor, 129 Ga. 217, headnote (5) states:
"Bonds issued by a municipal corporation, as evidence of a loan made to it, are instrumentalities of the government which creates the municipal corporation. Laws providing for the collection of taxes will not be so construed as to authorize the collection of a tax upon such instrumentalities of government, unless there is in the law clear language declaring that such was the intent of the lawmaking power."
There is no addition to or subtraction from the language of the Constitution of the State of Georgia of 1877, or in the Constitution of the State of Georgia of 1945, which would alter the principle enunciated here, nor is there any Act of the Legislature which expresses any intention to tax the instrumentalities of the State, its institutions, municipal corporations, or political subdivisions. Therefore, it is my opinion that any revenue anticipation certificates issued by the Town of Woodbine would not be taxable by the State of Georgia, or any of its political subdivisions.

PUBLIC REVENUE-Rolling Store Tax In order for a vehicle to be a rolling store, the goods must be carried thereon for delivery at the time of purchase.

Hon. J. G. Rockmore, Director Rolling Store Tax Unit Department of Revenue

September 26, 1950

OFFICIAL OPINION FACTS:
A company which has its principal office and place of business in Georgia employs several salesmen to call on customers in various towns in Georgia, and

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take orders for merchandise. Then, at a later date, the merchandise is delivered by these same salesmen, and the customer in each case is the ultimate consumer. PROBLEM:
Whether or not the vehicles so operated come within the purview of Sections 92-2950 and 92-2952 of the Annotated Code of Georgia of 1933 so as to be classified as rolling stores and taxable as such. ANSWER:
There is no question but that the goods and merchandise sold come within the statute's description, and that they are sold at retail as defined by the statute. The only question to be determined is whether the vehicles themselves constitute rolling stores.
Section 92-2952 of the Annotated Code of Georgia of 1933 defines a rolling store as "..... a motor vehicle of any kind or description traveling from place to place over the public roads and highways of this State transporting goods, wares, merchandise, or other commodities, and from or at which such goods, wares, merchandise, or other commodities so transported are sold or offered for sale at retail or exchange for goods, wares, or products of any kind or character whatsoever."
In Crawley vs. The State, 57 Ga. App. 376, the operator of a rolling store was held to be a peddler, and the court defined a rolling store as follows:
"A rolling store consists of an automobile truck with a body constructed thereon in the form of a small store. Each truck carried therein a general stock of merchandise, principally groceries, which were offered for sale and were actually sold and delivered to farmers and others along the route."
In Upchurch vs. City of LaGrange, 159 Ga. 113, 118, the court quoted with approval from 21 R. C. L., 183, as follows:
"It is another necessary requisite of peddling that the delivery must be made at the time of sale; the sale and delivery must be one transaction. The authorities are almost unanimous in holding that a person who solicits and obtains orders for goods by the display of samples, and delivers none of the goods at the time of sale, is not a peddler."
Here, the goods are sold by order and then delivered. It is of little importance that the same person in the same vehicle delivers the goods sold earlier. It is my opinion that the statute clearly contemplates a rolling store as a miniature store, stocked with all kinds of merchandise usually carried in a general store, placed on a motor vehicle chassis so that the store can be moved from house to house and the merchandise sold therefrom, the same as would be sold from a store at a fixed location. The scheme of business is to give purchasers the opportunity to see, to buy and take delivery at their doors. It follows, that in order for a vehicle to be a rolling store, the goods must be carried thereon for delivery at the time of purchase.
Therefore, it is my opinion that vehicles operated by salesmen who take orders from consumers and later return to deliver the goods ordered, are not Tolling stores within the puTview of the statute and are not taxable as such.
PUBLIC REVENUE-Rolling Store Tax (Unofficial) Counties may not levy and collect a Rolling Store Tax.
March 30, 1950
Honomble J. Lynwood Bentley This will acknowledge receipt of your letter of recent date in which you state
as follows:

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"Will you please give me your opinion, as to whether it is legal for the various counties of Georgia to collect a Rolling Store license from the Rolling Store operators, according to the bill that was signed into law, that was passed during the regular session of the General Assembly in 1941?
"Please note the caption and body of this bill."
The fourth paragraph of Section 1 of the Rolling Store Maintenance Tax Act approved February 16, 1938, (Ga. Laws 1937-1938, at page 181), contains the following proviso:
"Provided, however, that any county may levy a license tax upon each rolling store operating within the county levying the same a license fee or tax not exceeding the tax prescribed by this bill for the State. It being the legislative intent that such counties may or may riot levy such tax as herein provided at the discretion of the county authorities in each county."
The Supreme Court of Georgia in the case of Black vs. Jones, Tax-collector, et al, 190 Ga. 95, held as follows:
"That part of section 1 of the act approved February 16, 1938, entitled an act to provide for the levy of a maintenance tax for State purposes on motorvehicles operated as a rolling-store (Ga. Laws, Ex. Sess. 1937-8, p. 180 et seq.), which provides that 'any county may levy a license tax upon each rolling store operating within the county levying the same a license fee or tax not exceeding the tax prescribed by this bill for the State, it being the legislative intent that such counties may or may not levy such tax as herein provided at the discretion of the county authorities in each county,' is void since it contains matter different from what is expressed in the title of the act."
Pursuant to the :foregoing decision of the court, the General Assembly passed an Act, approved March 27, 1941, (Ga. Laws 1941, page 226), amending the rolling store maintenance act of 1938, above referred to, the title of which I'eads as follows:
"An Act to amend 'An Act to provide for the levy of a maintenance tax for State purposes on motor vehicles operated as a rolling store, etc.' (Georgia Laws, Extra Session, 1937-38, pp. 180 et seq.), by amending the title of said Act so as to authorize and limit the levy of a license tax by county authorities; and by reducing the State tax levied in said Act; and for other purposes.''
Section 1 of the Act of 1941 amended the caption of the 1938 Act by inserting the words "to authorize the Ordinary, the Commissioners of Roads and Revenues, or other county fiscal authorities having power to levy and assess taxes or license fees in the county, to levy and assess a limited license fee or tax on each rolling store operating within the county." The 1941 Act did not amend the 1938 Act so as to include a provision within the body thereof authorizing counties to levy a tax on rolling stores, and the Supreme Court having declared the provision contained in Paragraph 4 of Section 1 of the Act of 1938 to be void, there remained no provision in the law under which counties may levy a tax on rolling stores.
A void thing, under the legal definition in the construction of statutes, is no thing, and when a provision is declared void, the law means that it is of no legal force or effect, and an amendment to the title of an Act is not an amendment of the law itself. Section 2-1916 of the Constitution of 1945, being the same as Section 2-1817 of the Constitution of 1877, provides that:
"No law .... shall be amended or repealed by mere reference to its title .... but the amending, or repealing, act shall distinctly describe the law to be amended or repealed as well as the alterations to be made.''
Although I do not find where the courts have passed on this identical question,

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or where any other attempt has been made to put into operation a law declared unconstitutional by an amendment only of the title of the act which contained the unconstitutional provision, the provision authorizing counties to levy a tax on rolling stores was declared to be void by the court since it contained matter different from what was expressed in the title and was, therefore, wholly inoperative and the courts have held repeatedly that while the General Assembly has full power to amend its legislative enactments, an amendatory Act to be valid as such, must relate to an existing statute, and not to one which, having been repealed, is wholly inoperative.
Lampkin, et al. vs. Pike, 115 Ga. 827.
A void Act is just as inoperative as one which had been repealed, and I think the courts would so hold with reference to the rolling store maintenance tax act as amended by the Act of 194L
Please understand that the Attorney General cannot render official opinions to anyone except the Governor and heads of the various departments of State, and my personal views as contained in this letter are not binding on the county taxing authorities. There is no doubt but what the intention of the General Assembly was to authorize the various counties to levy a tax on rolling stores, and the law should be amended so as to meet the requirements of the Constitution and put into effect the intention of the General Assembly. However, until the matter is passed on by the courts, the law must necessarily be administered by the taxing authorities of the various counties as construed by them, and if they are in doubt as to whether they can lawfully levy such a tax, it should be referred to the county attorney for consideration.

PUBLioC SAFETY-Department of Public Safety 'Only such papers as may be used in evidence should be turned over by the Department to defense attorneys upon a subpoena duces tecum.

Colonel George W. Wilson, Director State Department of Public Safety

July 28, 1950

OFFICIAL OPINION
QUESTION: "If a subpoena duces tecum is issued to me or any member of the patrol
to turn over statements or other evidence for the use of the defense in a criminal or civil case, should we turn such evidence over to attorneys for the defense or ignore the duces tecum?"
ANSWER:
Section 38-901 of the Georgia Code reads in part as follows:
"When any deed, writing, or other document which it may be necessary to use as evidence in any cause may be in the possession of any person resident in this State who is not a party to the cause, the clerk of court, or justiee of the peace, in which the cause is pending, shall, upon application of the party or his attorney desirous of using such testimony, issue a subpoena duces tecum, directed to the person having such book or other document in his possession, requiring him to appear and bring with him into court the paper desired to be used as testimony." (Underscoring supplied.)
I am of the opinion that statements which are obtained during the course of an investigation of a criminal case could not be used as evidence and I am

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of the further opm10n that the Code Section cited a'bove contemplates the production of only such papers as may be introduced in evidence. Therefore, I believe that such statements would not be subject to a subpoena duces tecum.
However, I feel that some response should be made to a subpoena duces tecum and that it should not be completely ignored. There are various ways of attacking a subpoena duces tecum and each case would have to be determined on its own particular merits.
It is my suggestion that whenever you or a member of your Department is served with such a subpoena, you or such member confer with me immediately in order that we may decide upon the procedure to be followed in that particular case. I wish to make it plain that in no event should any evidence or statements be turned over to defense attorneys.
PUBLIC SAFETY-Driver's License (Unofficial) A person who is legally domiciled in another state and is the possessor of an operator's license issued by the state of his domicile, would not be violating the laws of Georgia in operating a motor vehicle in this State.
October 9, 1950 Honorable J. L. Godley, Ordinary
I am in receipt of your letter of September 30, 1950 in which you ask is a resident of the State of Florida with a valid Florida driver's license who is temporarily working in the State of Georgia and who has purchased a Georgia motor vehicle license plate, violates the law by not having a Georgia driver's license.
A person who is legally domiciled in another state and is the possessor of an operator's license issued by the state of his domicile, would not be violating the laws of Georgia in operating a motor vehicle in this State.
Section 92A-402 of the Georgia Code Annotated, Supplement, reads as follows:
"T'he 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 State. "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 product to market.
"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 vehicle in passing through this State. (Acts 1937, pp. 322, 342; 1939, pp. 135, 140.)
If it is determined that the Florida resident is legally domiciled in the State of Florida and comes within the provisions of the above quoted Code Section, such person would not be violating the Georgia law in operating a vehicle in this State.
The fact that the Florida resident purchased a Georgia license tag for his automobile is not alone sufficient to prove that such person is domiciled in Georgia.

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PUBLIC SAFETY-Ordinary The Court of Ordinary does not have jurisdiction to try cases arising under Code Section 58-608 unless committed upon the public roads, streets or highways.
January 26, 1950
Col. George W. Wilson, Director Department of Public Safety
OF'FICIAL OPINION FACTS:
Section 1 of the Act approved February 16, 1938, Georgia Laws 1937-8, Extraordinary Session, page 558, extends the jurisdiction of the Court of Ordinary to conduct trials, receive pleas of guilty and impose sentences upon defendants violating the provisions of the Act approved March 19, 1937, creating the Department of Public Safety, pages 322-355. This section further provides that the Ordinary shall have jurisdictior_ over defendants violating any and all other criminal laws of the State relating to traffic upon the public roads, streets and highways of the State. Code Section 58-608 defines the violation of drunkenness on the public streets or highways.
QUESTION:
Does an Ordinary of a county, not having a City Court, have jurisdiction to try a case of "drunk on the highway" or should such charge be construed as "relating to traffic" as outlined in the 1937-38 Acts, page 558, Section 1?
ANSWER:
The Act of 1937-38 extending the jurisdiction to the Court of Ordinary as stated above, gives the Court of Ordinary jurisdiction to try cases, accept pleas of guilty and impose sentences upon defendants violating any of the provisions contained in the Act of 1937, pages 322-355, and in addition, the jurisdiction is extended to include all violations which are misdemeanors relating to traffic, provided the defendant waives a jury trial. However, the courts have consistently held that to convict a person for the violation of Code Section 58-608, the evidence must show that the defendant's drunkenness or intoxication was caused by, the excessive use of intoxicating wines, beers, liquors or opiateg, and must further show that it was made manifest by boisterousness or by indecent condition or acting, or by vulgur, profane or unbecoming language, or loud and violent discourse, and that if the drunkenness is manifested in any manner other than the manner set out in the ~ection, a conviction would not be authorized. The courts have held that this section does not provide for punishment of intoxication upon public streets which is not otherwise manifested than by reckless driving. See Peterson v. The State, 13 Ga. App. 766.
While the Court of Ordinary has jurisdiction in cases involving operation of automobiles under the influence of intoxicants, it is my opinion that the Court of Ordinary does not have jurisdiction to try cases involving the violation of Code Section 58-608 unless the evidence shows that the person was operating or controlling the operation of the vehicle upon the streets or highways.

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PUBLIC SAFETY-Protection of prisoners The State Patrol, or the G.B.!., is not authorized, in protecting a prisoner or person in their custody, to do more than request a photographer not to take a picture of such person.

Colonel George W. Wilson. Director Department of Public Safety

l\Iarch 30, 1950

OFFICIAL OPINION QUESTION:
What procedure or amount of authority is given the State Patrol or G.B.!. in protecting a prisoner or person in their custody from being photographed when said prisoner or person requests that his picture not be made?
ANSWER: It is my opinion that it is the duty of the State Patrol or the G.B.I.,
after having arrested a person or having a person placed in his charge for the purpose of safe keeping, to protect such person from any mistreatment. However, I doubt if you would have authority to go further than to request a photographer not to make the picture of such person in your custody.

PUBLIC SERVICE COMMISSION-Jurisdiction 'The Public Service Commission has jurisdiction over a proposed increase in fares, even though the city in which the transit company operates has already provisionally assented thereto.

Honorable Matt L. McWhorter, Chairman Georgia Public Service Commission

October 3, 1950

OF'FICIAL OPINION FACTS:
Bibb Transit Company is engaged in the local transportation of passengers for hire by motor vehicle in the City of Macon and its suburban areas. The operating authority of this Company stems from an original franchise contract duly executed by the Mayor and Council of the City of Macon on September 16, 1902 for a period of fifty years providing for the consolidation of certain street railway companies. Bibb Transit Company acquired from its predecessor, the Georgia Power Company, this original franchise contract amended by subsequent ordinance contracts, and is presently Jperating under this authority.
At a hearing had on September 29th for the purpose of determining whether or not the Public Service Commission had jurisdiction over a fare increase, both The Transit Company and the City of Macon appeared and for the purpose of that pearing both conceded that the Bibb Transit Company is a Street Railway Company.
The franchise of 1902 provided that the 'Transit Company should charge a fare not to exceed five cents. However, this five-cent limitation on fares was subsequently eliminated by a new ordinance contract entered into after the passage of the Act of 1907, now codified as Section 93-304.
QUESTION: Does the Public Service Commission have jurisdiction over a proposed in-
crease in fares to be charged by the Bibb Transit Company, the City of Macon having already provisionally assented thereto?

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CONCLUSION: The Act of 1907 increasing the membership and powers of the Commis-
sion and conferring jurisdiction upon the Commission over street railway corporations reads in part as codified in Section 93-304.
"The powers and duties conferred by law prior to August 23, 1907, upon the Public Service Commission and its authority and control shall extend to street railroads and street railroad corporations, and companies or persons owning, leasing, or operating street railroads in this State: Provided, however, that nothing herein shall be construed to impair any valid contract between any mumcipality and any such company in force on that date: and Provided, that this section shall not operate to repeal any municipal ordinance existing on such date; nor shall it impair nor invalidate any contract or ordinance of any municipality, made or adopted since that date, as to the public uses of such company, that shall receive the assent of the Public Service Commission; ..."
In accordance with the language of this exemption proviso, supra, the assent of the Public Service Commission is required to any ordinance contract of any municipality subsequent to the enactment of the Act of 1907. Ordinances adopted by the Mayor and Council of the City of Macon subsequent to the Act of 1907, purporting to effect a ,change in the provisions nf the original franchise, for example, the fixing of fares, thereupon vested in the Public Service Commission jurisdiction over the subject matter of such provisions. Such matters as the issuance of securities not embodied in the original franchise contract of 1902 were brought within the province of the Public Service Commission by virtue of the Act of 1907. Upon expiration of the original ordinance ,contract of 1902 any conflicting jurisdictional issue, not heretofore vested in the Public Service Commission by amending ordinance contracts, then vests in such Commission.
It is accordingly my opinion that the Bibb Transit Company is subject to the jurisdiction of the Public Service Commission for the purpose of acting on the proposed increase in fares.

PUBLIC SERVICE COMMISSION-Relocation of railroad tracks The only way that a railroad company may change the location of its main tracks is through a special legislative Act empowering them to do so.

Honorable Matt L. McWhorter, Chairman Georgia Public Service Commission

March 1, 1950

OFFICIAL OPINION QUESTION:
Can the Public Service Commission authorize or compel a railroad to relocate its main tracks. If not, how may such main tracks be relocated?
ANSWER: Code Section 94-309 of the Annotated Code of Georgia of 1933 reads as
follows:
"94-309. Change of general diredion and route.-Any railroad company incorporated under the provisions of this Title shall have the power to change the general direction and route of its railroad from that stated in the original petition, by a two-thirds vote of the capital stock of said corporation represented in person or by written proxy at any annual or special meeting of the stockholders of said corporation, and when the same are so changed shall have

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the right and power to enter upon, condemn for rights of way, and construct said road on the land along the new or chnaged line, as it had on the original line; but no change shall be made in any town or city after the road has been constructed, without the consent of such town or city expressed through its proper authorities; and in case the route is changed after grading is commenced, compensation shall be made to all persons owning lands on the original route which have been injured by such grading or other work on such original route; if no agreement shall be made, such amounts shall be ascertained in the method provided for condemning rights of way."
Apparently, it was the intention of the General Assembly in the enactment of this statute to set down certah rules and regulations as to how a railroad company or corporation might relocate its tracks.
In the case of Leverett et al. vs. The Middle Georgia and Atlantic Railway Company et al., 96 Ga. Reports 385, headnote No 2 reads as follows:
"2. Where under such a charter a railroad company did in fact locate and construct a portion of its main line within and through such corporate limits, and operate the same for a considerable period, the company could not thereafter, without further legislative authority, so change the location of its main line as to practically 'side-track' the town in question, materially injure it as a business or commercial center, and destroy or greatly reduce the value of the property of its citizens; and in such cases these citizens are entitled to invoke the powers of a court of equity to prevent by injunction a threatened wrong of this character."
In this case the court said that a railroad company could only change the course of its main line by legislative authority.
In the case of Brown et al. vs. Atlantic and Birmingham Railway Company, 126 Ga Reports 248, headnote No. 1 reads as follows:
"1. Where a railroad company to which has been given the pDwer to choose its particular route between designated termini has exercised its discretion in this regard, its power of choice is exhausted, and it can not subsequently change its location without express legislative authority."
Tt is my opinion that under the above q11oted statute and decisions of our Supreme Court that the only way a railroad company could change the location of its main tracks would be through a special legislative act giving them the power to do so.
I am of the further opinion that the Georgia Public Service Commission has no power to authorize, direct or compel a railroad company to relocate its tracks of its main line after it is once put into operation.
ROADS, BRIDGES & FERRIES-State Highway Department The State Highway Department is liable for the full cost of road contracts upon the refusal of the Federal Roads Administration to participate in the project.
May 26, 1950 Honorable Herman Talmadge, Governor
OFFICIAL OPINION FACTS:
The State Highway Department of Georgia has made the following request: "Budgetary approval of 100% State Funds in the amount of $370,293.28

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is requested to cover the Federal participation which was withdrawn on the following projects:
FAP 2708 C (1) Screven---------------------------------$283,401.91 S 210 (2) Colquitt________________________________________ 86,891.37
Total ------------------------------------------------$370,293.28 The above amount is a part of $800,000.00 held in our Emergency Fund for this purpose.''
QUES'TlON: I am requesting your opinion as to whether or not, under the terms of
the contracts, copies of which are attached, and the statements of the State Highway Construction Engineer in letter attached, the State Highway Department of Georgia is liable for the payment of the entire amounts on these two projects, and whether or not the sums set forth should be approved by me as Budget Director.
ANSWER: Upon exammation of the contracts to which you 1efer the statements of
the State Highway Construction Engineer in his letter dated May 22, 1950, and other documentary evidence, I find the pertinent facts to be substantially these: that the Federal Roads Administration withdrew participation on project FAP 2708-C (1) Screven County $283,401.91, and S 210 (2) Colquitt County $86,891.30 because of the refusal of their Engineer to approve these projects; whereas, the State Highway Construction Engineer, Mr. C. W. Leftwich, formally approved them under date of May 22, 1940.
Project #2708 C (1) was let in two contracts, one between the State Highway Department and Coffee Construction Company dated January 17, 1942, for the construction of 12.863 miles of grading, paving and one bridge culvert on the Statesboro to Sylvania Road beginning at the Bulloch County line and ending in Sylvania, and the other between the State Highway Board of Georgia and Scott Construction Company, dated January 23, 1942, for three bridges on the Statesboro to Sylvania Road.
Project No. S 210 (2) and SAP 1511 D (2) was covered by a contract between the State Highway Board of Georgia and Scott Construction CDmpany dated October 10, 1946, for the construction of 5.438 miles of grading,
base and surface treatment on the Albany to Moultrie Road, begining at North
Main Street in Albany and extending towards Albany.
The two contracts covering F:AP 2708 C Screven County were both executed on Form H. D. 191-3-40, and the contract for Project No. S 210 (2) and SAP 1511 D (2) was executed on Form H. D. 191-Revised.
Each of these contracts contain the following provisions:
"3. The said work shall be done in accordance with the laws of the State of Georgia under the direct supervision, and to the entire satisfaction of the State Highway Department, subject at all times to the inspection and approval of the Secretary of Agriculture, or his agents, and in accordance with the rules and regulations made pursuant to that certain Act of the Federal Congress entitled "An Act to provide that the United States shall aide the States in the construction of rural post roads and for other purposes," approved July 11, 1916, and amendments subsequent thereto.''
"4. The decision of said State Highway Engineer upon any question connected with the execution of this agreement or any failure or delay in the prosecution of the work by the said contractor shall be final and conclusive."

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The record discloses that project F AP 2708 C (1) Screven County was completed in accordance with plans and specifications on August 31, 1947, and that projects S 210 (2) Colquitt County was completed in accordance with the plans and specifications on November 19, 1947.
Both of these projects were, as I have pointed out, formally approved by State Highway Construction Engineer C. W. Leftwich.
The law in this matter is determined by the terms of the contracts between the State Highway Department of Georgia and the contractors, and not by any action on the part of the Federal Roads Administration. Therefore, the question of the State liability to the contractors and yonr authority to give budgetary approval of the amount involved can be resolved only by construing the terms and provisions of the contracts.
Funds covering one hundred percent of the cost of these contracts had been transferred to the State Highway Department before the contracts were executed in accordance with a previous ruling of mine. Section 4 of these contracts provides as follows:
"4. The decision of said State Highway Engineer upon any question connected with the execution of this agreement or any failure or delay in the prosecution of the work by the said contractor shall be final and conclusive."
While the preceding section provides for inspection by and approval of the Secretary of Agriculture, or his agents, etc., this provision has no bearing on the question of the liability of the State Highway Department and the contractors. The Secretary of .Agriculture is no party to the contract. The provision for inspection and approval is simply permissive. The controlling provision as to the State's liability is in Section 4, supra. It would be utterly impossible for the State Highway Department to recover any portion of the one hundred percent payment made to the contractors, since that Board, acting through its Engineer, has approved the projects under the terms of the contract. This is true notwithstanding the fact that the Federal Engineer refused to approve the projects. Moreover, there is no provision of law to compel the Federal Raads Administration to participate.
In view of the foregoing provisions of the contracts, the facts and the plain language of Section 4 of the contracts, I am of the firm opinion that the State Highway Department of 'Georgia is lia,ble for the payment of the entire cost of these contracts, and that you are authorized to give budgetary approval to the same as requested by the Department.
I might point out that while the State is compelled under this arrangement to pay one hundred percent of these projects because of the refusal of the Federal Roads Administration to participate the amount of funds anticipated by the Department does not represent a loss to the State because an equivalent amount was allocated to other Federal aid projects upon the 1 efusal of the Federal Engineer to approve these projects. Also, it is to be noted that $800,000 is available to the Department in an emergency fund for situations exactly of this nature.
Please understand that my ruling in this matter has no bearing whatsoever on the question of compliance by the contractors, which is an engineering and not a legal problem. My opinion must be construed strictly in terms of legal liability of the State Highway Department to the contractors based on strict principles of law in the construction of contracts.

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ROADS, BRIDGES & FERRIES-State Highway Board The Treasurer of the State Highway Board may also legally hold the office of Judge of the City Court of Leesburg.

Honorable Herman E. Talmadge Governor, State of Georgia

February 15, 1950

OF'FICIAL OPINION QUESTION:
Can a person holding the position of Treasurer of the State Highway Board be appointed and legally hold the office of Judge of the City Court of Leesburg, as established by the Act approved August 21, 1905, as amended, and at the same time hold the position of 'Treasurer of the State Highway Board'!

ANSWER: Section 89-101 of the 1933 Code of Georgia provides in part as follows: "The following persons are held and deemed ineligible to 'l:.old 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, 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 the several States, or of any foreign State."
Section 89-103 of the 1933 Code of Georgia provides: "No person shall hold, in any manner whatever, or be ~ommissioned to hold at one time, more than one county office, except by special enactment of the legislature; nor shall any commissioned officer be deputy of any other commissioned officer, except by such special enactment." You will note that the first quoted provision of the statute above refers to holding State offices and that the last quoted section refers to holding County offices. It was held in the case of Long et 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 neither a county treasurer nor a member of the county board of education were ineligible to hold the office of alderman of a municipal corporation.

Mr. Justice Atkinson in the above cited case stated the common law rule as follows:

"At common law there was no inhibition against the holding of more than one office, provided they were not inconsistent with each other."

I know of no statutory prohibition against a county officer holding a State office or position, providing the duties are not inconsistent with each other. 'Therefore, it is my opinion that the common law rule would the applicable to the question propounded.

The .Act creating the City Court of Leesburg specifically provides that the office of Judge is a county office. It is my opinion that a per~on holding the position of Treasurer of the State Highway Boa:vd would be eligible to hold at the same time the office of Judge of the City Court of Leesburg, as created by the Act approved August 21, 1905 (Ga. Laws 1905, page 266-276, as amended), in view of no statutory prohibition against a person holding a county office and a State position or office, where the duties are not inconsistent with each other.

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ROADS, BRIDGES & FERRIES-State Highway Board Reimbursement of utilities for cost of relocation of facilities on the Atlanta North-South E:xpressway.
August 3, 1950
The Director of The State Highway Board of Georgia Atlanta, Georgia
OF'FICIAL OPINION
FACT'S AND BAC~GROUND: Pursuant to Act of Congress approved July 11, 1916, and Acts amenda-
tory thereof, particularly the "Federal-aid Highway Act of 1944" (See E<xhibit "A" attached, and Title 23 of U. S. C. A.), the Bureau of Public Roads entered (April-June 1948) into a project agreement with the State Highway Department of Georgia for the planning and construction of a F'ederal-aid project known as No. UI (Urban Interregional) 536, Unit (1) being the planning thereof; Units (2-1), (2-2), (2-3), etc. being the construction of the various legs thereof, and commonly called the Atlanta North-South Expressway.
The last revised estimate of the master project agreement calls for a total expenditure, as regards construction, of approximately $10,000,000, of which about one-third ($3,700,000) will be paid for by the Federal government and the remaining two-thirds by the State with the State's two-thirds being shared in jointly by Fulton County and the City of Atlanta.
Pursuant to this master project agreement, detailed estimates, in effect detailed agreements, were then prepared and approved by the State and the Federal authorities covering various sections or legs of the North-South Expressway.
NATURE OF EXPRESSWAY: According to the approved plans and specifications, the so-called Atlanta
North-South Expressway is actually more than an e:xpressway. It is a freeway with no street lights or stops or cross lights planned. There will only be allowed limited and controlled access. It will in effect be a through highway for the passage of traffic through Greater Atlanta. Its military and interstate value is primary, and Atlanta and Fulton County traffic is secondary.
It appears from the documents relating to this project that the following public utilities are affected:
Project UI 536 (2-1) City of Atlanta (water works and sewers); Southern Bell Telephone Company; Atlanta Gas Light Company; Georgia Power Company. Project UI 536 (2-2) City of Atlanta (water works and sewers); Southern Bell Telephone Company; Atlanta Gas Light Company; Georgia Power Company; Western Union; American Telephone and Telegraph Company; Central of Georgia Railroad; The Central of Georgia Railroad Company is being reimbursed for changing its structures. Project UI 536 (2-3) City of Atlanta (water works and sewers); Southern Bell Telephone and Telegraph Company;

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Atlanta Gas Light Company; Georgia Power Company. Detailed estimates were prepared, submitted and approved by the Public Roads Administration on the Units (2-1), (2-2) and (2-3). Contracts were let for construction work on said Units, and Unit (2-1) is substantially completed. Included in the detailed estimates of each of the above stated Units were force account agreements with the various public utilities named by which the State Highway Department obligated itself to reimburse these utilities for the cost of relocation and alteration of their facilities occasioned by the construction of the project. (copy of the form Of this type of contract hereto attached marked "Exhibit B"). It was determined in conference by the engineers of the State Highway Department and the Bureau of Public Roads that because of the nature of the project, it would be proper for the State Highway Department to reimburse the utilities the cost of relocation and alteration of the facilities to accommodate the project. Indeed the record shows that the detailed estimate contained copies of these force account agreements setting forth the unit prices, and the Commissioner of Public Roads, by and through the Acting Division Engineer for the U.S. Division of Public Roads, approved the various unit prices set out for force account conditions. Section VII A of the General Administrative Memorandum #300 of the Public Roads Administration provides in part: "Before approval is given 'by Division Engineers to plans, specifications and estimates for a project, the proposed agreement between the State and a utility company shall be reviewed with special attention to the eligibility for reimbursement with Federal Funds of the participating items of cost included therein. Any estimate submitted which includes work to be performed by a utility company shall be supported by a written agreement which has been entered into by the State and the utility company." The memorandum further provides that copies of all such agreements by the State and the utility companies shall bear the Division Engineer's approval. Paragraph C of Section VII provides: "Approval of the work contemplated to he performed by a utility company shall not be construed as having been given until the required agreement has been received and approved." There is nothing before me which indicates that a proper agreement between the Highway Department and the public utilities was not submitted and approved "with special attention to the eligibility for reimbursement with Federal funds" by the Division Engineers. On Unit (2-1) which is substantially complete, no question has yet been raised by the Bureau of Public Roads as to their participation in reimbursements to the utilities involved; however, on May 8, 1950, the Bureau of Public Roads by letter to the State Highway Department called for a determinl\tion of liability for cost of relocation and alteration of utility facilities in accordance with Section III B of the General Administrative Memorandum #300 covering Unit (2-3). A similar request has been made by the Bureau of Public Roads in a letter to the State Highway Department dated May 23, 1950, covering Unit (2-2). It has been determined that Projects UI 536 (2-2) and (2-3) involve substantially no lands which come within the accepted meaning of public property, public streets or rights-of-way. Most of the land involved in these two projects which is affected by the public utilities was secured either by condemnation or outright purchase. There are, however, neglig~ble instances where the

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expressway will cross roads, streets and highways. The utility properties occupying portions of these crossroads, streets and highways are in terms of cost relatively small. There is one exception in this category which is covered in Project UI 536 (2-3) which involves utility facilities along Williams Street to Simpson Street to Merritts Avenue. PROBLEM:
Based upon the foregoing facts, determine whether under Section III B of the General Administrative Memorandum #300 the utilities affected in Projects UI 536 (2-3) and (2-2) are abligated or relieved of obligation by law or otherwise to relocate their facilities at their own expense.
DETERMINATION:
The Fact Division of this determination reveals a glaring moral responsibility on the State Highway Department to reimburse the public utilities for the cost of relocation of their facilities to accommodate the construction of the Atlanta North-South Expressway. 'These facts are highly persuasive to me in arriving at a legal conclusion. For example: There exists a contract between the State Highway Department and the utilities providing for reimbursement, which was based upon (1) the existence of two unofficial opinions from the State Law Department dealing with a similar situation in which it was determined that the State would be liable for the cost of relocation; and (2) a coaference understanding between the Engineers of the State Highway Department and the Division Engineers of the Bureau of Public Roads that the State would be liable and the Federal Government would reimburse the State.
It is not for me to determine in this opinion whether this contract could be enforced as a matter of law; however, as Attorney General I am constrained to say that I would be very reluctant tc defend the State Highway Department against a lawsuit brought by the utilities involved should this matter not be determined in favor of the utilities.
I am compelled to presume that the moral responsibility reflected herein by the facts and the existence of a contract between the Highway Department and the utilities is of no legal consequence, since the Bureau of Pu'blic Roads had knowledge of both when they called upon the Highway Department to make a determination based upon the law as reflected in possible existing statutes, franchises and contracts. The applicable portion of General Administrative Memorandum #300 to the facts and the law appear to be Section III, Subsections A and B, as follows:
"A. Where a utility company is not obligated to move or to change its facilities at its own expense, reimbursement will be made from Federal funds for the costs without surcharge, except as hereinafter provided, of labor, materials, equipment and other services incurred by a utility company in making or incident to making changes to its properties required in connection with the construction of a highway project.
"B. Where a utility occupies public rights-of-way and public lands pursuant to law, ordinance, franchise, easement, grant and otherwise, the State shall make a formal finding as to the extent that such utility company is obligated, or is relieved of the obligation, lby law or otherwise to move or to change its facilities at its own expense. Where a utility company occupies public rights-of-way under a grant or otherwise from a municipality or other subdivision of ~. State which obligates the utility company, or pursuant to
which tne utility company may be required, to move or to change its facilities
at its own expense, approval of the project will be contingent upon the municipality or other subdivision of the State exercising its right to require the

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removal or change of such facilities at the expense of the utility company. Where the law or the terms and conditions under which a utility occupies public rights-of-way do not specify who shall pay the costs of the change or removal, the State shall make a formal finding as to the extent the utility company is relieved or is required to move or to change its facilities at its own expense in accordance with the applicabre precedent established by courts. If the State should determine in conformity herewith that a utility company is not under obligation, and may not be required to move or to change its facilities &t its own expense, reimbursement may be made an an amount not exceeding the regular Federal pro rata share applicable in such State of the cost of such work actually paid by the State or its subdivisions, and where no part of such cost is paid by the State or its subdivisions there will be no Federal reimbursement."
While it is probably beyond my prerogative to attempt to place an interpretation uprm the meaning of the foregoing subsections, I am, nevertheless, desirous of pointing out that the phrase "public rights-of-way and public lands" can have application to only a small portion of the land involved in the subject projects. The accepted legal meaning of "public rights-of-way and public lands" embraced no property not owned by the Government or its political subdivisions. As pointed out in the Fact Division of this opinion, only an inconsequential amount of the lands involved as affected by utility facilities.
As to Project UI 536 (2-2), none of the land lies within the corporate City of Atlanta, and no portion of it concerns public rights-of-way or public property except where in isolated instances the expressway crosses public roads and streets. Though these utilities are public and under the jurisdiction of the Public Service Commission of Georgia there is no jurisdiction affecting the property rights of the utilities as applied in this situation. Moreover, there is no State statute, ordinance or franchise which obligates the utilities to remove their facilities from such lands at their own expense to accommodate the construction of a highway. Thus, the only questions for determination as to the above project (UI 536 (2-2) - is whether the State could compel the utilities to relocate their facilities at their own expense under its police power. This point will be dealt with subsequently.
One of the public utilities affected in both Projects UI 536 (2-2) and (2-3) is the Atlanta Gas Light Company. This company received its charter by a special act of the General Assembly of Georgia, approved February 15, 1856 (Georgia Laws 1855-56, page 420). In this act the General Assembly granted a franchise covEJr-ing all the mains in the streets of the City of Atlanta in the following language:
"2. Sec. II. And be it further enacted, 'That the said corporation shall have full power and authority to make, manufacture and sell ~as, to he made of coal, rosin or other materials, for lighting the streets, public and private buildings, and other places in the city of Atlanta, and shall be, il.nd is hereby authorized and empowered to lay down in any and all of the streets, lanes, avenues, alleys, squares and public grounds of said city, gas pipes and other apparatus for conducting gas through thE, same, and to erect therein such gas posts, burners and reflectors, as may be necessary or convenient, Provided, that the public thoroughfare shall at no time be unnecessarily interrupted or impeded by the laying down or erection thereof, and that the said streets, lanes, avenues, alleys, squares and public grounds shall not be thereby injured, but shall be left in good state and condition as they were before the laying down of said pipes, conductors or other apparatus and the erection of said posts."
It is to be noted that there is no reference in this act that in any wise

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requires the Atlanta Gas Light Company to remove its mains under any conditions at its own expense. The charte::: or contractual right arising under this grant is definitely protected by both the Federal and State Constitution, irrespective of any subsequent contracts which may exist that have not come to my attention.
The Georgia Power Company operates under a franchise gTanted by the State. Under this franchise it is authorized to operate a street railway and inter-urban railroad. The State Constitution requires that before this franchise could be used in the manner prescribed, the company would have to have the consent of the city. (See Section 2-1925 of the State Constitution). Code Section 94-1005 of the Georgia Code of 1933 gives the company the rig-ht to distribute steam, and provides that the streets of the city shall not be used for this purpose without first obtaining the consent of the city. This consent arrangement is also applicable to the trackless trolley and motor bus operations for the company. (See Code Section 90-1010). This consent was obtained, but without specific provisions as to relocation to accommodate highway construction. As to the sale and distribution of electricity, no requirement of municipal consent is apparent. Inasmuch as all of the operations of this company are under a general law, any existing special acts by the City of Atlanta which may exist that have not been called to my attention .would not control under the State Constitution unless the General Assembly by its own act delegated such authority to the city. There is no State statute so authorizing the city to act.
As to the position of the Southern Bell Telephone and Telegraph Company, its right to occupy the roads and streets springs from Code Section 104-205. There is nothing in this Code Section which specifically requires the Southern Bell Telephone and Telegraph Company to remove its facilities from the roads and streets to accommodate highway construction. In the case of this company, as is true with respect to certain of the other utilities considered in this memorandum, it may be contended that its right to use the ;treets of the City of Atlanta is subject to the approval of the city. Even assuming this to be true, such approval was given to the Southern Bell in an ordinance dated September 5, 1907, and this approval was extended by an ordinance enacted in 1940. In these ordinances there is a requirement that the Southern Bell Telephone and Telegraph Company "upon notice in writing from the city that a municipal improvement, sewer or water main, or branch thereof, is to be constructed or repaired in such manner as will necessitate the relocation of its poles or conduits, or other appurtenances of the said company, the company
shall relocate the same at its own expense ***." These ordinances are simply
a reservation of the police power of the city of Atlanta, and :perhaps inserted in the city ordinances in an attempt to forestall a contention that the company acquired a contractual right to leave its poles and appurtenances in place by the acceptance of the terms of the ordinance. (See County of Floyd vs. Rome Street Rwy. Co., 3 S.E. 3; Russell vs. Sebastian, 233 U.S. 195, 58 L. Ed. 812.) It has been held by the Supreme Court of the United States that an ordinance similar to an ordinance of the City of Atlanta is simply a reservation of police power, and that such an ordinance is circumscribed by the usual limitations imposed upon the exercise of police power. See Owensboro vs. Cumberland Tel. & Tel. Co., 230 U.S. 58; 33 S. Ct. 988, 993, from which the following part of the decision is pertinent:
"The 6th section of the granting ordinance provides that 'this ordinance may be altered or amended as the necessities of the city may demand.' This is no more than a reservation of the police control of the streets, and of the mode and manner of placing and maintaining the poles and wires, incident to

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the unabdidgeable police power of the city. See Grand Trunk Western R. Co. v. South Bend, 227 U.S. 544, 57 L. Ed.-"
It is my opinion that the reservation of police power contained in the above ordinances is limited to projects of a local character and of the type and character specified in the ordinance. It is, of course, the general rule that a municipal corporation is limited in the exercise of its police powers to matters local and municipal. (See C. J. Municipal Corporations, page 227.)
Attorney General vs. City of Detroit, 196 N.W. 391 (1923). The following is quoted from page 394:
''In the previsions under consideration the city has undertaken to exercise the police power not only over matters of municipal concern, but also over matters of state concern; it has undertaken not only to fix a public policy for its activities which are purely local, but, also for its activities as an arm of the state. The provisions apply alike to local activities and state authorities. If we assume, as we have, for the purposes of the case, without deciding, the question that the city possesses such of the police power of the state as may be necessary to permit it to legislate upon matters of municipal concern, it does not follow that it possesses all of the police power of the soverign so as to enable it to legislate generally in fixing a public policy in matters of state concern."
As stated earlier in this opinion, it is quite apparent that the projects under discussion are not of local character but are primarily of interstate character. It is my opinion that the City of Atlanta cannot exercise its reserved power in aid of such nonlocal projects.
In addition to this fact, it is well established that the police power must be reasonably exercised and must lbe exercised under circumstances reasonably commensurate with the evil sought to be remedied. The Supreme Court of the United States, in the Walters case (Nashville C. & St. L. Ry. v. Walters, 294 U.S. 405, 55 S. Ct. 486 (1936) used the following language, which is very pertinent:
"*** And it was stipulated that: 'In the light of modern motor vehicular
traffic anything which slows up that traffic is an inconvenience. In other words, eliminating a grade crossing, as in the case at bar, facilitates the speed of motor vehicular traffic, in accordance with public demands.' But when particular individuals are singled out to bear the cost of advancing the public convenience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured. Compare Hadacheck v. Sebastian, 239 U.S. 394, 36 S. Ct. 148, 60 L. Ed. 348, Ann. Cas. 1917B, 927; Miller v. Schoene, 276 U.S. 272, 48 S. Ct. 246, 72 L. Ed. 568. While moneys raised by general taxation may constitutionally be applied to purposes from which the individual taxed may receive no benefit and indeed, suffer serious detriment; St. Louis & Southwestern Ry. Co. v. Nattin, 277 U.S. 157, 159, 48 S. Ct. 438, 72 L. Ed. 830; Memphis & Charleston R. Co. v. Pace, 282 U.S. 241, 246, 51 S. Ct. 108, 75 L. Ed. 315, 72 A. L. R. 1096; so-called assessments for public improvements laid upon particular property owners are ordinarily constitutional
only if based on benefits received by them ***"
Further, it is universally held that the police power must be exercised without discrimination. It is my opinion that the overall projects being carri!'ld on in the City of Atlanta and in Fulton County are an integrated group of projects, and that no one of the projects may be viewed in isolation. The police power of the various political subdivisions involved has not been exercised to require the railroad companies involved at the various grade crossing elimination projects to bear the expense of these grade crossing projects. The total expense of these operations has been borne by the various governmental

217
units involved. Since it is my opinion that all of these projects are an integrated whole, it is my opinion that the police poWer cannot be exercised in some of them against Some of the utilities involved, which would amount to a discrimination against those utilities.
43 C. J., Municipal Corporations, Sec. 231: "Discrimination. The exercise of municipal powers must be such as to operate with substantial equality and uniformity on all persons and classes similarly situated, and hence municipal ordinances and regulations that are unfair, partial and discriminatory as between persons so situated are invalid." 12 C. J., Constitutional Law, Sec. 440: "The fourteenth amendment to the constitution of the United States provides, 'nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws'; and thus adds to the express limitations on the power of the states. It does not deprive the states of their police power, however; and, subject to the limitations, expressed therein, the states may continue to exercise their police powers as fully as before the adoption o:f the amendment." 12 C. J., Constitutional Law, Sec. 442:
"*** Thus, regulations adopted under the guise of the police power must
operate with substantial equality on all persons and classes, and if they contain arbitrary distinctions or discriminations, they will be uronounced un-
reasonable and void. ***"
Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 55 S. Ct. 486 at 494. Mayor v. Savannah Distributing Co., 202 Ga. 559, 43 S.E. (2) 704 (1947). ':Dhe following is quoted from page 714:
"*** The constitution is offended where a public law is applied differently
to different persons under the same or similar circumstances. **'~" The determination I have made thus far with reference to the obligation
of the State Highway Department to reimburse the public utilities specifically dealt with is applicable to the Western Union, The Southern Bell Telephone and Telegraph Company, Georgia Power Company, and Atlanta Gas Light Company. We have no problem relating to the facilities of the Central of Georgia Railroad, since the record shows that an adjustment has already been made as to it.
The final question to be determined is to what extent the State could resort to its police power in compelling the utilities to relocate their facilities at their own expense. The general rule is that the use of a highway or street by a public utility is subject to the continuing police power of the State, and the cost of readjusting the facilities of such utilities because of any reasonable change or reconstruction in the highway or street must be borne by the utility itself. This general rule has no reference to a situation involving the location of such facilities on private property acquired by condemnation or purchase. Moreover, emphasis must be placed on the meaning of reasonable changes. This is particularly true in the case before us because of the nature of the project involved.
We cannot divorce ourselves from the proposition that the Atlanta NorthSouth Expressway is primarily a part of an interstate military Federal highway, and that the use by local traffic is secondary.
I have pointed out heretofore that the City of Atlanta would have no legal authority to use its police power to compel the utilities to relocate at their own expense, since the police power of the municipality is, under the circumstances in this case, limited to matters of municipal concern. The State is in a similar situation as it relates to this particular project.

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The exercise of the police power of a sovereign state must be commensurate with justice and reason and operate within the framework and the spirit and letter of the Federal and State Constitutions.
Therefore, based upon the foregoing facts and law, it is my firm opinion that the State Highway Department of Georgia and the City of Atlanta are without authority to compel the pulblic utilities affected to relocate their facilities to accommodate the construction of the Atlanta North-South Expressway at their own expense. In view of this determination the State Highway Board of Georgia is, in my opinion, legally authorized to reimburse the utilities.
November 21, 1950
SUPPLEMENTARY OPINION
In August of this year this office submitted to you an official opinion as to whether or not the utilities affected in the construction of the Atlanta North-South Expressway should be reimbursed for the cost of relocating their facilities. It was my conclusion in considering this problem that the State Highway Department of Georgia and the City of Atlanta were without authority to compel the public utilities affected to relocate their facilities to accommodate the construction of the Expressway at their own expense and that the State Highway Department was legally authorized to reimburse the utilities. I have since haJ forwarded to me a memorandum from the Honorable L. E. Boykin, Solicitor, Bureau of Public Roads, in which certain phases of my opinion were considered and questioned.
Mr. Boykin's memorandum indicated that he felt that the utility adjustments fell into three categories and that in regard to the first, utilities located on privately owned land, there was no question but that the portion of cost applicable to that class of utility adjustments would be eligible for Federal participation. His memorandum did question the eligibility for Federal participation in the cost of utility adjustments on streets being crossed by the Expressway and on streets occupied by the facility. The memorandum then requested that the Division Engineers of the Bureau of Public Roads furnish the Solicitor's office with a breakdown of the estimated cost of adjusting the various utilities in each of the three categories. I understand that this information is or will be made available to the local offices of the Bureau of Public Roads and I presume it will be transmitted to Mr. Boykin.
Mr. Boykin's memorandum also stated that it could not let go unchallenged my assumption that the Expressway was .primarily a part of the interstate Federal highway and that the use thereof by the City of Atlanta and Fulton County was secondary and, therefore, the city or State could not exercise their police power in requiring the utilities to move their facilities at their own expense. It is true that this was one of the theories or arguments which I felt supported the conclusion reached in my opinion. It may 'be true, however, that from an actual engineering and factual standpoint, that it could not be said that the Expressway will be used primarily as a part of an interstate military Federal highway and that the use thereof by local traffic will be secondary. It is admitted that the future military use of the Expressway is problematical and that it is not known to what extent the Expressway will be a part of a strategic network of highways of military importance. This office strongly feels, however, that the actual and potential value of the Expressway in that regard is most persuasive in determining the nature of the Expressway and greatly distinguishes it from a purely local or municipal street improvement. In further determining the nature of the Expressway it is certainly persuasive that it is an integral part of a national system of inter-

219
state highways; that it is used to connect by routes as direct as practicable the principal metropolitan areas and industrial centers; that it is the hub of primary Federal interstate routes passing through the area of greater Atlanta, and that is a free-way of limited and controlled access.
I can reaoh no other conclusion than that the Expressway is thus vastly different from any local or municipal street widening or improvement, that it is in its essential nature a free-way, part of an interstate s:ystem passing through greater Atlanta which was never contemplated by the utilities and the local governments concerned at the time that the various utilities were granted their charters and franchises.
The fact that the local State Highway engineers and officials, as well as those of the Division and District offices of the Bureau of Public Roads, the city and county authorities, and the utilities, all in good faith agreed to and acted on the belief that the Expressway was something new and different, that its extent, fundamental nature and purpose took it out of any local construction or improvement and made the cost of adjusting the facilities as a consequence thereof a cost that was not in equity and good conscience to be borne by the utilities concerned are all circumstances which are strong arguments for and forceful evidence of the fact that the Expressway is a project of such nature that to force the utilities to adjust at their own expense their facilities thereon would, in effect, amount to taking or damaging private property without just compensation and denying the utilities equal protection. Notwithstanding the franchises or charters of the utilities or the ordinances, laws or police powers of governments, the evidence is impressive that the Expressway is something so much more and so different from anything ever contemplated by the utilities or the local governments, that it cannot be said that the utilities have no right to be reimbursed for the cost of adjusting their facilities as a result of the construction of the Expressway, nor can it be said that they have lost to the police power or have waived or contractec away their fundamental right to be reimbursed for such property of theirs as might be taken or damaged in consequence of the Expressway's construction.
My fundamental views, therefore, as to the nature of the Expressway, which were the basis for the conclusions in my opinion, remain unchanged. It may well be an actual fact that the Expressway will have its greater use locally as far as the number of vehicles passing over it is concerned. This fact, however, will not serve to alter the primary purpose or nature of the Expressway which distinguishe.s it from a local road for local traffic.
Mr. Boykin's memorandum also called attention to the fact that my opinion referred to a conference understanding between the Engineers of the State Highway Department and the Division of Engineers of the Bureau of Public Roads that the State would be liable and the Federal government would reimburse the State proportionately for the cost of relocation of the utilities concerned, and Mr. Boykin asked his Division Office for a full report relative thereto. He then noted that their files contained copies of contracts or force account agreements between the State Highway Department and the various utilities for reimbursement to the utilities for the adjustment of their facilities, which contracts had been approved for Federal participation by both the District and Division offices of the Bureau of Public Roads. While, of course, the actual understanding !between the Engineers of the State Highway Department and the Engineers and officials of the Bureau of Public Roads will have to be determined from those who were present and participated in the conferences, it is, nevertheless, my understanding that the officials concerned felt all along that there was no question that the nature of the Expressway was such that utilities would be

220
entitled to reimbursement for the adjustment of their facilities by State and Federal funds; That this problem was considered at the time the main project agreement for the construction of the Expressway was agreed on; that it was most unlikely that the State Highway Department of Georgia would have been able to or would have entered into the construction of the Expressway if the Bureau of Public Roads were not to have participated its full pro rata share in the cost of relocating the utilities. It is now my understanding that the State Highway Department may very well find itself unable to continue the construction of the &pressway if it will have to bear without Federal participation the full cost of the relocation of the utilities.
Regardless, however, of the jeopardy in which the completion of the Expressway may be placed by the refusal at this time of the Bureau of Public Roads to participate with F'ederal funds in the relocation of utilities thereon, this office firmly feels there is most persuasive and compelling argument, both in law and in equity, which should decide affirmatively the questio.1 as to whether or not the costs of adjustment of the utilities on the Expressway are subject to Federal participation.
SOCIAL WELFARE~Board of Eugenics The Board of Eugenics does not have authority to order sterilization of any person not under the care of a State Institution.
June 23, 1950
Honorable Alan Kemper, Director State Department of Public Welfare and Member of the State Board of Eugenics
OF'FICIAL OPINION
QUESTION: Can the Board of Eugenics authorize sterilization of several mental patients
who are not patients of any .State institution? ANSWER:
The answer to your question is found in Section 99-1303 )f the 1933 Annotated Code of Georgia, Pocket Supplement, which provides as follows:
"When it shall appear to the superintendent, manager, or director of any State home or hospital for mental or physical disease, or any State colony or institution for the care of the mentally or physically defective, deficient, or diseased, or the warden or superintendent of any State prison or penitentiary, correction school or reformatory, detention home, or camp, that a patient or inmate under the care of or in such institution, would be likely, if released without sterilization, to procreate a child, or children, who would have a tendency to serious physical, mental, or nervous disease or deficiency, said superintendent or manager, after a consultation with his medical staff or any medical authority, shall submit to the .State Board of Eugenics a recommendation that a surgical operation be performed upon said person for the prevention of parenthood. Such operation shall be a vasectomy for males, and a salpingectomy for females, or some similar operation that would not unsex the patient or inmate thereof."
You will note that the above statute limits the authority of the .State Board of Eugenics only to those patients or inmates under the care of or in (1) State home or hospital for mental or physical disease, (2) State colony or institution for the care of the mentally or physically defective, deficient, or dis-

221
eased, (3) State prison or penitentiary, correction school or reformatory, detention home, or camp.
It is my opinion that the State Board of Eugenics does not have the authority to authorize sterilization of any person who is not under the care or in the above enumerated State institutions.

SOCIAL WELFARE-Construction Contracts Construction Contract claims which are legal and proper must be paid.

Honorable Alan Kemper, Director State Department of Public Welfare

May .18, 1950

OFFICIAL OPINION FACTS:
"The D. C. Fowler Construction Company has filed claim for extra payment under contract with this Department for construction of a boiler room at the Milledgeville State Hospital. The claim consists of the actual cost of the following items, which the contractor was required to install:

Forced Draft Fan -----------------------------------------.--$1,451.00 Automatic Regulation of Stoker______________________________ 2,421.00
Cinder Return System -------------------------------------- 2,921.25
"The matter of this claim has been discussed several times. I am attaching a recent communication from the contractor's attorney submitting additional facts in the case." QUESTION:
Please give us your opm10n as to whether or not under the wording of the contract payment of this claim is legal and proper, in view of the facts and circumstances outlined in the file. ANSWER:
I have reviewed the file and contract referred to and it appears that there are certain well recognized principles of law which govern the construction of this contract. Of course the entire contract, that is, the original specifications and the addenda, are to be construed together. The addenda, to say the least of it, is ambiguous. Being ambiguous, and the language relating to the construction trade, it would be controlled by Section 20-704(2) of the Code and Section 20-704 (5).
The first sub-section provides: "Words generally bear their usual and common signification; but technical words, or words of art, or used in a particular trade or !business, will be construed, generally, to be used in reference to this peculiar mea11ing. The local usage or understanding of a word may be proved in order to arrive at the meaning intended by the parties." One of the leading cases applying this principle is that of Asa G. Candler, Inc., v. Georgia Theatre Company, 148 Ga. 188, in which the opinion was written by Senator Walter F. George while a member of the Supreme Court. He said: "Generally words in a contract are to be given their usual and primary meaning at the time of the execution of the contractt, but words of art, or words connected with a peculiar trade, are to be given the signification attached to them by experts in such art or trade. This rule is one of construction, and, like every such rule, is subordinate to the intention of the parties to the contract."

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The words of doubtful meaning must be construed most strongly against the party preparing the contract. The Code provides:
"If the construction is doubtful, that which goes most strongly against the party exhibiting the instrument, or undertaking the obligation, is generally to be preferred."
In the present case, the specifications and the addenda were prepared by the architect, that is, they were prepared by the State, and the ruie of construction would operate against the State. The rule is stated by the Court of .Appeals in Bridge v. Home Guano Co., 33 Ga. App. 305, as follows:
"If a contract is so framed as to be susceptible of two constructions, that interpretation which is least favorable to the author or party proposing it shall generally be accepted."
The opinion in that case was written by Judge Bell and suprorted by the following cases cited by him:
Candler Investment Co. v. Cox, 4 Ga. App. 763(1); Aetna Insurance Co. v. Lipsitz, 130 Ga. 170(2); Morefield v. Fidelity Mutual Life Ins. Co., 135 Ga. 186(2).
In connection with the present matter, it seems clear from the statements from all of the bidders, whose bids were in the general range of the bid of the successful bidder, that they construed the addenda as eliminating items for which the claims is interposed.
Thus it appears that the construction placed upon the language used by the persons versed in the use of the words relating to the construction contract, was that these items were not to be included in the contract.
It also seems clear that there has been no actual loss to the State. On the contrary, the State has been enriched by reasons of this error, that is, it has been enriched unless it pays for this equipment, because it is perfectly clear that if the bidders had understood the specifications to mean that they should furnish these items, the result would have been that every bid would have been higher by at least as much, if not more tl,.,an the amount involved in this claim.
It is entirely probable it would have been a great deal more, because the claim submitted represents the actual cost of furnishing these items, without any addition for profit, handling charges, or otherwise.
I, therefore, reach the conclusion and it is my opinion that this claim should be paid under budgetary rules and regulations of the State.
STATE AUDIT'OR~State Department of Education
December 22, 1950
1. The State Superintendent of Schools is responsible for the control of expenditures of funds of the State Dept. of Education after such funds have been allocated by the State Board of Education. 2. The StateBoard of Education may provide the method whereby its administrative officer could, or could be required to, carry out its desire in curtailment of reduction in staff. 3. Employees are not legally separated from the payroll of the Department if the State Board of Education has not filed any change in apportionment of funds with the Budget Authorities or received their approval.
December 22, 1950
Honorable B. E. Thrasher, Jr. State Auditor QUESTION:
1. Who shall be responsible for the control and expenditure of funds of the

223
State Department of Education after such funds have been apportioned or allocated to specific purposes by the State Board of Education'?
2. Did the State Board of Education have the authority to remove employees of the State Department of Education as provided and under the procedure as set forth in the .order of the Board issued on November 17, 1950?
3. Did the order of the State Board of Education issued on November 17, 1950 actually terminate the services of the employees named therein, as of November 17, 1950, or December 31, 1950? ANSWER:
Pursuant to a request of Honorable George Whitman, Jr., Chairman of the State Board of Education, I gave my opinion on May 18, 1949 (Opinions of the Attorney General, 1948-49, page 517) that under the then existing constitutional and statutory authorities cited therein, in the event of dereliction of duty by a department head or employee, final action and authority was in the discretion of the State Board of Education, although the State Superintendent of Schools may make recommendations which are entitled to great weigi1t. This opinion primarily involved the construction of Section 32-410 of the Code of Georgia and the authority granted to the State Board of Education thereunder.
Subsequent to this opinion, the General Assemlbly enacted Merit System legislation applicable to the State Department of Education which now must be considered in construing the powers and authority of the State Board of Education and the State Superintendent of Schools. Further, the question now under consideration involves the spheres of operational control of the funds of the State Department of Education that should or could be exercised by the State Board of Education and the State School Superintendent.
Without restating the authorities cited in my opinion of May 18, 1949, it is sufficient to state that both the State Board of Education and the State Superintendent of Schools are constitutional officers and that the State Board of Education is vested by law with the general supervision of the State Department of Education. Also, that the State Superintendent of Schools is the executive secretary of the State B"oard of Education, and the administrative officer of the State Board of Education, charged with the duty and responsibility (1) to carry out and enforce all the rules and regulations of the State Board of Education and the laws governing the schools receiving State aid, and (2) to make such recommendations to the State Board of Education as may affect the welfare and efficiency of the public schools.
Insofar as these powers, duties and responsibilities relate to the funds of the State Department of Education, and the spheres of authority within which the State Board and the State Superintendent of Schools shall operate, it is necessary to examine the procedures set up by the General Assembly in making appropriations to this Department and the General Budget Laws which are applicable.
The General Appropriations Act of 1949 (Georgia Law, 1949, page 1506)
provide~:
EDUCATION "Section 7. For grants for aid to the common schools; for matching vocational education and vocational rehabilitation funds in cooperation with the Federal Government; for operations of vocational trade schools; for operations of public and rural library programs; for operations of school for Deaf and Academy for the Blind; for grants for aid to the common schools under the provisions of law; for free textbooks for the children attending common schools; for the salaries of county school superintendents; for the operating cost of the Department; and for any and all other expenses by law payable from the common school fund ... $41,500,000.00.

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"Provided, that the State Board of Education shall within the first thirty days of each fiscal period make an apportionment of this appropriation together with other funds available to the various activities of the Department of Education and immediately report same to the State budget authorities for approval. After said apportionment is approved, any and all obligations or commitments made which are in excess of the funds apportioned, shall be null and void and all expenditures shall be governed by the laws and <budget regulations of general application which are or may be in force and effect."
It will be noted that the General Assembly in making the above cited appropriation to the State Department of Education specifically restricted the use of these funds for the purposes named and under the stated system of disbursement. It is clear that the General Assembly intended to restrict the State Board to making an apportionment of the appropriation as the State Board deemed advisable to the best interest of the State School System in keeping with the division made in the appropriation act, and filing their apportionment in writing with the State Budget authorities. .After making this restriction the General Assembly very clearly provided that after the State Board filed its apportionment of the appropriated funds, the funds apportioned would be governed 'by the laws and budget regulations of general application to all departments of the State Government.
Section 32-411 of the Code of Georgia relating to funds for the operational expenses of the State Department of Education provides:
"Set aside funds for maintenance Qf Department. The Board shall set aside the necessary funds for the maintenance of the office of the State Department of E.ducation and the State Superintendent of Schools, the amount and sufficiency of said funds to be in the discretion of the State Board of Education, said funds to be disbursed by the State Superintendent of Schools in the payment of salaries and travel expense of employees; for printing, communication, equipment, repairs and other expenses incidental to the operation of the State Department of Education."
Section 40-407 of the Code of Georgia relating to the procedure of execution of the Budget provides:
"Execution of the budget. 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 required to carry on the work of the agency during the ensuing quarter, and such requisition shall contain such details of the proposed expenditures as may be required by the Governor. Such requisition shall be approved by the Governor as to all its requests, except such as in the judgment of the Governor may not conform to the provisions of the Act of the General Assembly making appropriations, and as to such exceptions the responsible head of the spending agency shall be notified and shall have the right to be heard lly 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 such changes or transfers shall become effective, a copy o= the request and approval shall be transmitter! to the State Auditor."
It is also clear that the General Assembly intended by the above cited enactments to provide a system or sphere of authority under which funds apportioned <by the State Board of Education would be actually disbursed by

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the executive head of the State Department of Education, so that one person under bond would be responsible f.or the actual depositing and disbursing of departmental funds received through approval of the budget authorities. It is well to point out that the State Superintendent of Schools, as the executive secretary and executive officer of the State Board, is bonded, whereas the State Board members are not.
It is therefore my opinion that the sphere of control to be exercised by the State Board of Education over the funds appropriated to the State Department of Education under the Appropriation Act of 1949 is restricted to making an appointment in writing of the appropriated funds, and filing this with the State Budget authorities for approval and guidance in authorizing the actual disbursement thereof.
It is my further opinion that the State Board of Education, in making such apportionment of appropriated funds to the State Department of Education, may provide therein that such apportionment shall be subject to such further revision and adjustment as the Board may determine to the best interest of the State School System and State Department of Education. Such revision, however, must be in writing and filed with the budget authorities before any change may be made in the existing departmental budget.
It is my further opinion that the General Assembly intended by the enactment of the above cited authorities to provide that after the State Budget authorities approved the apportionment of the appropriated funds as made by the State Board of Education, the executive officer of the State Department of Education would be authorized and it would be his duty to make the necessary departmental budget request, draw and disburse such apportioned funds as approved by the State Budget authorities under existing budget laws and regulations, and responsible for any illegal expenditure thereof. The State Superintendent of Schools is the responsible executive officer of the State Department of Education.
An Act of the General Assembly of Georgia approved February 15, 1950 (Georgia Laws, 1950, page 190) relating to the application of the Merit System to the employees of the State Department of Education provides in part as follows:
"Section 1. All employees of the State Department of Education shall be governed by such rules of position, classification, appointment, promotion, demotion, transfer, dismissal, qualification, compensation, seniority privileges, tenure, and other employment standards as may now or hereafter be established under such merit system control as may be authorized by the Act approved February 4, 1943, (Georgia Laws 1943, pages 171-177) providing for the establishment of a Merit System Council, or any amendmants thereto.
"Section 2. All employees of the State Department of Education who are on the payroll of said department at the time of the passage af this Act who shall be issued a certificate of satisfactory service by the State Superintendent of Schools of said department shall be given permanent status under the merit system."
It is my opinion that all of the employees of the State Department of Education were placed under the Merit System by the provisions of the above law as of February 15, 1950 and that any employee issued a certificate of satisfactory service lby the State Superintendent of Schools under the provisions of Section 2 of the above Act would have a permanent status within the meaning Of the Merit System Act of 1943 (Georgia Laws 1943, pages 171-177), as amended, and any removal would have to conform to the rules and regulations of the State Merit System in force and effect as of February 15, 1950, and as may have been legally amended thereafter.

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Section 40-2208 of the Code of Georgia relating to dismissal of employees under the State Merit System provides:
"No employee of any department which has been brought uncier this Chapter under an executive order issued in accordance with section 40-2201 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: Provided, however, that this provision shall not apply to persons dismissed from any department due to curtailment in funds or reduction in staff. Any employee who is dismissed shall have the right vf appeal under the terms of the rules and regulations prescribed by the Merit System Council. The decision of the Council on such an appeal as to whether or not the dismissal was for proper cause and in accoxdance with the rules and regulations prescdbed by the Council shall be binding upon the Commissioner or Director of the department dismissing such employee. Such Commissioner or Director shall promptly comply with such order as may be issued as a result of the appeal by the Merit System Council."
From a review of the cited authorities herein and the general laws applicable, I reach the conclusion and it is my opinion that should the State Board of Education desire to change the personnel of the State Department of Education due to curtailment of funds or reduction in staff, that it must first change its apportionment of funds in writing and file same with the State Budget At~thorities for approval and specifically provide in such apportionment what funds are curtailed and staff reductions made. After this procedure had been followed and assuming that the State Budget authorities approve of such changes, then the State Merit System Law and rules and regulations as to change of personnel would control, and not the regulations of the State Board of Education. It is well to point out that where reduction in staff is made involving permanent employees, the employees are not usually separated from the Department but considering seniority and other merit system factors, they move down in rank and position within the existing administrative .structure of the department in existence at the time of the action.
An examination of the records of the State Budget Bureau discloses that no amendment of the apportionment of funds of the State Department of Education has been made as of this date.
Answering question one, I reach the conclusion that the State Superintendent of Schools, as the executive and administrative office!' of the State Department of Education, is responsible for the control and expenditure of funds of the State Department of Education after such funds have been apportioned or allocated by the State Board of Education.
In answer to question two, I reach the further conclusion and it is my opinion that the State Board of Education, under proper apportionment of appropriated funds and subject to the State Merit System Law and the rules and regulations adopted pursuant thereto, may provide the method whereby its administrative officer could, or could be required to, carry out its desire in curtailment or reduction in staff.
Answering question three, I reach the further conclusion and it is my opinion that in view of the fact that the State Board of Education has not made and filed with the State Budget authorities any change in the apportionment of funds, or received the approval of the State Budget authorities thereto, its action on November 17, 1950 was not legally sufficient to remove the employees involved from the payroll of the State Department of Education. Therefore, such employees not having been legally separated from the

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payroll of the Department, would be entitled to their salary and any and all travel expenses that they have actually incurred while performing the duties of their positions.
STATE TREASURER-Welfare Funds The State Treasurer is directed to withhold funds from any State funds distributable to counties, except education, in order to provide funds for welfare.
September 29, 1950
Honorable George B. Hamilton State Treasurer
OF'FICIAL OPINION FACTS:
The Board of Commissioners of Roads and Revenues of Grady County which is charged with the administration of the fiscal affairs of the county has failed and refuses to pay to the County Welfare Department for Old Age Assistance, Aid to the Blind and Aid to Dependent Children, the sum of money which said county, under the provisions of an Act approved February 7, 1050 (Ga. Laws, 1950, page 314) is required to pay to the special fund maintained by the Grady County Welfare Department for Old Age Assistance, Aid to the Blind and Aid to Dependent Children. The amount that Grady County has refused and failed to pay for the month. of September is the 4% of awards for said month which is $658.38. QUESTION:
Under the provisions of the Act approved February 7, 1950 (Ga. Laws, 1950, page 314), is the State Treasurer of the State of Georgia auth.Jrized to retain the sum necessary for such county payment out of any funds distributable to Grady County fo1 failing or neglecting to pay said sum due to be paid to the Grady County Welfare Department for Old Age Assistance, Aid to the Blind and Aid to Deper,dent Children, and pay such sums retained over for said welfare purposes 1 LAW:
The Act approved February 7, 1950, (Ga. Laws, 1950, page 314) provides: "Section 1. That from and after the passage and approval of this Act, the various counties of the State shall contribute five per cent of the total costs of administration and four per cent of the total costs of all benefits payable under the Act approved February 26, 1937, known as the 'Old Age Assistance Act', the Act approved Februa1y 26, 1937, known as the 'Aid to the Blind Act', and the Act approved February 26, 1937, known as the 'Aid to Dependent Children Act', the remaining ninety-five per cent of such administrative expenses and the remaining ninety-six per cent of the total costs of all benefits payable under said Acts shall be payable by the State Department of Pu:blic Welfare and Social Security Board. 'The Governor is hereby authorized by executive order to enforce this section. In the event any county shall fail or neglect, during any month, to pay to the county welfare department for old age assistance, aid to the blind and aid to dependent children, the sum of money which such county, under the provisions of this Act, is required to pay, then the State Treasurer is hereby authorized and required to retain the sum necessary for such payment out of :my State funds distributable to such county for any purpose except education. No statutory requirement that 'lny distributable fund shall ibe used exclusively for a designated purpose shall be construed as preventing the State 'Treasurer from taking out of such fund the amount which

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any county owes under this Act. It is the intent of this provrsJOn to authorize and require a setoff against any claim which any county may have upon the State Treasury of such amount as the county may owe to the special fund for old age assistance, aid to the blind and aid to dependent children, and to provide for the payment into said funds of such amount thus set off." ANSWER:
The intent of the Act of 1950 above cited is specifically stated in the Act to be,
"It is the intent of this provision to authorize and require a set-off against any claim which any county may have upon the State Treasury of such amount as the county may owe to the special fund for old age assistance, aid to the blind and aid to dependent children, and to provide for the payment into said funds of such amount thus set off."
The Act under consideration further provides: "The State 'Treasurer is hereby authorized and required to retain the sum necessary for such payment out of any State funds distributable to such county for any purpose except education." (Underscoring supplied.) The statute further provides: "No statutory requirement that any distributable fund shall be used exclusively for a designated purpose shall be construed as preventing the State Treasurer from taking out of such fund the amount which any county owes under this Act." Since the education funds are exempt from the provisions of the above cited Act, the only funds distributable to the various counties subject to the withholding provisions thereof is the Motor Fuel, or Fuel Oil Tax which is payable to the various counties in monthly allotments. It is my opinion that under the provisions of the Act approved February 7, 1950 (Ga. Laws, 1950, page 314), the State Treasurer of the State of Georgia is not only authorized but he is directed to retain out of any ,'State funds distributable to Grady County for any purpose except education, the required amount of funds as provided in said Act, and pay such amounts into the special fund maintained by the Grady County Welfare Department for old age assistance, aid to the blind, and aid to dependent children.

VETERANS-Certificate of Exemption A veteran's certificate of exemption does not apply to the regulatory fee imposed by the Liquefied Petroleum .Safety Act.

November 10, 1950

Hon. Zack D. Cravey Comptroller General and

Insurance Commissioner

QUESTION:

OF'FICIAL OPINION

Whether a 'Vorld War II Veteran who has secured a "veteran's certificate for exemption" is exempt from the payment of the $100.00 license fee under the Liquefied Petroleum Safety Act.

ANSWER: Chapter 84-20 of the Annotated Code of Georgia of 1933, provides that
such a veteran shall be exempt from paying tax levied upon the privilege of engaging in business within certain limitations.
The Liquefied Petroleum Safety Act is "An Act to prescribe uniform regu-

lations for the distribut,ion, sale and use of liquefied petroleum . . . " The Gen-

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eral Assembly declared its intent by stating" . . . that this Act is necessary for the immediate preservation of the public peace, health and safety."
In OPINIONS OF THE ATTORNEY GENERAL, 1945-1947, pages 484 'and 583, almost this exact question was answered. It is my opinion that these two previous enunciations control this question, and further, that the fee provided for in the Liquefied Petroleum Safety Act is a regulatory fee, and therefore, a veteran's certificate of exemption does not apply.
VETERANS-Certificate of Exemption A Veteran's Certificate of Exemption issued under authority of Chapter 84-20 of the Annotated Code of Georgia of 1933 does not exempt either a Real Estate Broker or a General Insurance Agent from the payment of License fees.
December 13, 1950 Mr. J. H. Crutchfield Supervisor, Field Office Division State Department of Veterans Service
OFFICIAL OPINION QUESTION:
Whether or not a Veterans Certificate of Exemption issued under authority of Chapter 84-20 of the Annotated Code of Georgia of 1933 exempts either a Real Estate Broker or a General Insurance Agent from the payment of license fees. ANSWER:
Snipes v. Flournor, et al., 178 'Ga., 815, made a distinction between a merely revenue producing occupational tax and a fee required in the furtherance of a regulatory statute. This case determined that the holder of a Veterans Certificate of Exemption was not exempt from the payment of license fee required of a Real Estate Broker. Nothing in the 1947 Act amending Chapter 84-20 of the Cod'.l modifies the rule of this case.
It is my opinion that the requirement of a license fee from one an Insurance Agent also is in furtherance of the regulatory statute.
Therefore, for these reasons it is my opinion that a Veterans Certificate of Exemption issued under authority of Chapter 84-20 of the Annotated Code of Georgia of 1933 does not exempt either a Real Estate Broker or a General Insurance Agent from the payment of license fees.
Nothing herein shall be construed as meaning or implying that veterans holding a Certificate of Exemption are not exempt from occupational taxes imposed by the General Tax Act of 1935, as amended, (Ga. Laws 1935, p. 11).
VETERANS-Driver's Licenses (Unofficial) Honorary driver's licenses are issued to veterans of ninety days' service, some part of which was within the "War Periods."
January 12, 1950 Mr. Robert H. Htrndon
This will acknowledge receipt of your letter with reference to the Act of the General Assembly which authorizes the granting of honorary driver's licenses to veterans.
I am glad to advise you that honorary driver's licenses are issued to vet-

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erans of the Armed Forces of the United States of America, of ninety days service, or more, some part of which was within the "War Periods," which include veterans of World Wars I and II serving within the following War periods:
Between April 6, 1917 and April 1, 1920, Between December 7, 1941 and July 25, 1947.
VETERANS-State Board of Veterans Service Regular meetings of the State Board of Veterans Service may be held at a subdivision branch office.
March 24, 1950 Honorable W. K. Barrett, Director State Department of Veterans Service
OFFICIAL OPINION QUESTION:
Is it legal for the State Board of Veterans Service to convene a regular meeting in Savannah, Georgia? ANSWER:
Section 2 of Act No. 344, STATE DEPARTMENT OF' VETERANS SERVICE, Page 321, Ga. Laws 1945, provides among other things that:
"The State Board of Veterans Service shall meet once each month in the offices of the State Department of Veterans Service."
It is very clear from the foregoing provision of the 1945 Act that no official meeting of the members of the State Board of Veterans Service shall convene in any place other than "the offices of the State Department of Veterans Service."
I am informed that the State Board has officially established a subdivision branch office at Savannah which in the discretion of the Board members is necessary and practical for conducting the business of the State Board. If this is true, it would be perfectly legal for the members of the Board to meet at the Savannah subdivision branch office for the purpose of conducting the official :business of the Board any time such meeting place is in the discretion of the members expedient.
VITAL ST.A:TISTICS-Birth Certificates (Unofficial) Birth certific11tes must be filed within 12 months of birth.
J!l.nuary 31, 1950 Honorable H. S. Thompson, M.D.
I am pleased to acknowledge receipt of your letter of January 27th concerning the registration of births in the State of Georgia. Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and the heads of the various State Departments. However, it is a pleasure for me to refer you to Section 88-1108 of the Georgia Code Annotated, which is applicable to your question:
"Within the time prescribed by the Board, a certificate of every birth shall be filed with the local registrar of the district in which the birth occurred; such certificate shall be filed by the father, or if the father is not available, by the mother, and, in the absence of both, by the next of kin or the person having custody of the child. A confidential medical report of each birth shall be made upon a form which shall be prescribed by the State Board of Health,

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which report shall be filed by the physician, midwife, or other legally authorized person in attendance at the birth, with the State Department of Public Health, which report shfll be used for statistical and public health purposes only."
The time prescribed by the State Board of Health for the filing of these certificates is twelve months, and Section 88-9929 provides that any person who violates any of these provisions, or who neglects or refu;;es to perform any of the duties imposed upon him shall be fined not more than $25.00.
WARM SPRINGS MEMORIAL COMMISSION-Posting of State Lands The State, when posting lands, must register such posting as is required of a private citizen.
March 23, 1950
Honorable Lee S. Trimble, Secretary-Treasurer Franklin D. Roosevelt Warm Springs Memorial Commission
OFFICIAL OPINION FACTS:
"Some time ago, this Board authorized the posting of lands owned by it, (2749A) against hunting and trespassing. Posters have been made up printed as per copy attached. These have been placed in prominent positions along the roads over the property. There is a State law requiring private owners to register such intention to post lands in the County Courthouse.'' QUESTION:
"Does this requirement apply also to State owned lands?'' ANSWER:
Section 45-401 of the 1933 Annotated Code of Georgia provides as follows: "Any person who shall hunt with dogs, firearms, or in any other way on any lands, enclosed or unenclosed, of another, or fish with hook, seine, nets, or in any other way in any streams, lakes, ponds or lagoons of another, after being forbidden so to do or when ordered to desist therefrom by the owner thereof or by the person having the same in charge or his agent, shall be guilty of a misdemeanor. It shall be the duty of the landowners to post a notice in two or more places on each tract of land, forbidding all persons to hunt thereon or fish in the streams, ponds, lakes, or lagoons belonging to said landowners." (Underscoring supplied.) Section 45-402 of the Code provides as follows: "It shall be the duty of the ordinaries, or the commissioners of roads and revenues in the counties where such boards exist, to furnish a suitable book, to be known as the 'register for posting lands,' to the clerk of the superior court of their re:spective counties, in which the landowner shall register his or her name, after having first stated in the presence of the officers in charge of said book that the two notices have already been posted upon said landowner's land, as required by the preceding section." Section 45-403 of the Code provides as follows: "The posting of the notices at two or more places on each tract of land (although such notices, from any cause, shall thereafter be defaced, knocked down, or destroyed) and the registering of the landowner's name in the register for posting lands shall be legal notice under this Chapter." Section 45-405 of the Code of Georgia provides as follows: "The register for posted lands shall be kept in the office of the clerk of the superior court, except while being used by the tax receiver or tax commissioner, as the case may be, while making his rounds; it being the purpose

232
of this Chapter to afford the parties posting the lands, as well as the parties desiring to hunt or fish, the privilege and opportunity of examining said register."
You will note under the provisions of the above statutes that a landowner must post the notice in two or more places on each tract where persons are forbidden to hunt or fish.
' There is no exception or provision in the above statutes whieh places State lands in a different category from any other lands owned lby private persons.
I therefore reach the conclusion that the State in posting its lands against hunting and fishing should follow the procedure outlined in the above statutory provisions the same as any other citizen of the State since the purpose and intent of the posting and registration of lands upon which hunting and fishing is forbidden, is to the public proper notice of such forbidden areas.

PART III
Opinions of the Attorney General 1951

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AGRICULTURE-Agricultural Commodities Authority The Agricultural Commodities Act i& unconstitutional. May 18, 1951
Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUESTION:
Whether or not the Agricultural Commodities Authority (Georgia Laws, 1951, page 717) is unconstitutional. ANSWER:
Yes. REASONS:
'The propriety of the Attorney General passing upon the constitutionality of any Act of the Legislature is questionable and except in the most exceptional and clear cases, I have felt it my duty not to express an opinion on such a question. However, since this Act can not be executed without action by you as Governor and since the application of the Act affects every agricultural producer in the State to some extent, I am constrained and feel it my duty, pursuant to you::: request, to advise you on the constitutionality of this Act.
It is my opinion that the Act establishing the Agricultural Commodities Authority seeks to delegate law making power to the Authority and to certain individuals who may respond to a referendum conducted by s;,,id Authority pursuant to its own supervision and rules and regulations. The Legislative power most specifically delegated in this Act is the taxing power. Under Section 10 of this Act, the levying and collection of an assessment is made to depend upon a referendum which is limited to a specific class of persons which distinguishes it from local option type laws where referendums are held by political subdivisions of the State.
Legislative power is by the Constitution vested in the General Assembly. (1945 Constitution of Georgia, Art. III, Sec. I, Par. 1; Ga. Code Ann. Sec. 2-1301.) By the Bill of Rights it is declared that the three coordinate powers, legislative, judicial and executive, shall be forever kept separate. (1945 Constitution of Georgia, Art. I, Sec. I, Par. 23; Ga. Code Ann. Sec. 2-123.) The question of whether the Legislature can transfer its law making power to any other body was questioned early in the history of this State hy the Supreme Court in the case of Franklin Bridge Company vs. Wood, 14 Ga. 80, and it has long been established law that purely legislative functions can not be delegated by the General Assembly.
One of the most important tests as to whether particular laws amount to an invalid delegation of legislative power is found in the completeness of the statute as it appears when it leaves the Legislature's hand. Holcombe vs. Georgia Milk Producers Confederation, 188 Ga. 358.
"The generally recognized principle is that a law must be so complete in all its terms and provisions when it leaves the legislative branch of government that nothing is left to the judgment of the electors or other appointee or delegate of the legislature. . . . The law must be perfect, final, and decisive in all of its parts, and the discretion which is given must relate only to execution.'' 11 Am. Juris., Constitutional Law, Section 215.
The test is whether the Act or provision is sufficiently definite and certain to enable one reading it to know his rights and obligations thereunder. It is, therefore, my opinion that this Act is incomplete in that the legislative power to levy an assessment is made to depend on the determination of certain individuals and is, therefore, incomplete legislation and unconstitutional as an unwarranted delegation of power vested only in the General Assembly.

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AGRICULTURE-Department of Agriculture The Commissioner of Agriculture is without authority to sell, lease or otherwise dispose of State property.
October 15, 1951 Honorable Tom Linder Commissioner of Agriculture
OFFICIAL OPINION QUESTIONS:
1. Does the Commissioner of Agriculture have authority to enter into a contract with the authorities of a county, under which the county would be given the use of State property for a term of years for the erection of buildings and carrying on business of a public nature, such as the erection and operation of Livestock Auction Barns, the erection and operation of water pumping stations, reservoirs, etc., or other like public business or business of pulblic interest?
2. If the Commissioner of Agriculture does have such authority and does enter into such contract with the county authorities, can such county authorities in turn enter into a sub-contract with private business for building and operating such business, or would the county be required to do so as a county project?
3. If the Commissioner of Agriculture has the above outlined authority as to county, would this also be applicable to municipal governments?
ANSWER: The Commissioner of Agriculture is given general authority ever the oper-
ation and maintenance of State markets 'by virtue of Chapter 5-2 of the Code of Georgia of 1933, Annotated. Section 5-208 authorizes the procuring of market sites and Section 5-212 authorizes the procuring and collection of reasonable charges in 01der to pay the cost of acquiring, operating ,md maintaining such sites and markets.
It should be noted, however, that there is no authority in the cited statutes authorizing the Commissioner of Agriculture to enter into long-term leases or otherwise dispose of State property. The power to purchase, lease or rent is altogether different and distinct from the power to sell, lease or dispose of State property.
It is my opinion that State property can not be leased, sold or otherwise disposed of without Legislative authority and since such authority has not been given by the Legislature, the Commissioner of Agriculture is not authorized to enter into such long-term leases.
Since, in my opinion, the Commissioner of Agriculture is without authority to so lease State property, Questions 2 and 3 become moot.
BANKS AND BANKING-Interest Rate (Unofficial) The highest lawful rate of interest in Georgia is eight per centum per annum. March 26, 1951
Mrs. M. W. Blocker This is in further reference to your letter of March 18th in which you
inquire as to the legal rate of interest that may be charged in Georgia. Section 57-101 of the Annotated Code of Georgia, 1933, provides as follows:

236.
"The legal rate of interest shall be seven per centum per annum, where the rate per centum is not named in the contract, and any higher rate must be specified in writing, but in no event shall any person, company, or corporation reserve, charge, or take for any loan or advance of money, or forbearance to enforce the collection of any sum of money, any rate of interest greater than eight per centum per annum, either directly or indirectly by way of commission for advances, discount, exchange, or by any contract or contrivance or device whatever."
Chapter 25-3, Small Loan Business, and Section 25-301 0f said chapter provides as follows:
"No person, partnership, or corporation shall engage in the business of making loans of money, credit, goods or things in action in the amount or to the value of $300 or less, and charge, contract for, or receive a greater rate of interest than eight per centum per annum therefor, except as authorized by this Chapter, and without first obtaining a license from the Superintendent of Banks."
BANKS AND BANKING-Trustees (Unofficial) There are no provisions in the Georgia law concerning the eligibility of a non-resident bank to act in a trust capacity for a decedent in Georgia.
May 3, 1951
Mr. John Gilfillan This letter is in answer to your recent inquiry in which you stated that
you represent a national bank in Pittsburgh, which is qualified under the laws of the Commonwealth of Pennsylvania to act in a trust capacity, and in which you ask my opinion whether or not such bank would be eligible to act in that capacity in connection with an estate of a decedent in the State of Georgia.
I must advise you that under the laws of this State I am prohibited' from rendering official opinions to anyone except the Governor of this State and the several State Department Heads, so that the ensuing remarks are necessarily unofficial.
I find that there is no Gode Section in this State dealing directly with point which you ask, and that there are no court decisions relative to same.
. However, I believe that the fiduciary relationship is comparable to that of an executor.
a As general rule, only citizens of the United States domiciled in Georgia
are qualified to act as executors and administrators in this State. The only exception to this rule arises where a non-resident has an equal, greater, or sole interest in the estate of a deceased citizen of Georgia; and even then, such non-resident executor must give bond of double the value of the estate in Georgia, payable to the Ordinary of the county where the administration was granted, with sureties resident in this state. I call to your attention Code Sections 113-1203 and 113-1206 of the 1933 Gode of Georgia.
From the above, it is probable that your bank does not have equal, greater or sole interest ir, the estate o:f the deceased citizen of Georgia, and for that reason, I do not believe that your bank could act in a trust capacity in this state, but obviously, if it does qualify, then it may do so.

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CIVIL DEFENSE ADVISORY COUNCIL-Eligibility Membership on the Civil Defense Advisory Council being without emoluments allows a member of the General Assembly to be eligible for appointment to such position.
March 2, 1951
Honorable Herman E. Talmadge Governor of Georgia
OFF'ICIAL OPINION QUESTION:
Is a member of the General Assembly eligible to appointment to membership on the Civil Defense Advisory Council established by the 1951 General Assembly? ANSWER:
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 sucb 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 Fhall be appointed to any civil office which has been created during such term."
The general purpose of a provision 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 al., 128 U.S. 1.74 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 of election by the Governor or General Assembly to such civil office as was contemplated under the provisions of the Constitution of 1877. The prohibitions there applied only to offices for which provisions were made for emoluments. Since membership on the Civil De.l'ense Advisory Council does not provide for emoluments and is wholly advisory in nature, it is my best judgment that a member of the General Assembly is eligible for appointment to such office.
CONTRACTS-Gambling (Unofficial) Gambling and wagering contracts are against public policy in this State
.September 24, 1951
Miss Edna Ruth Morgan Your letter of September 20, addressed to the Department of Law, re-
questing information concerning gambling and wagering contracts in this State has been received.

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Section 20-504 of the 1933 Code of Georgia makes wagering contracts illegal and reads as follows:
"A contract which is against the policy of the law cannot be enforced; such are contracts tending to corrupt legislation or the judiciary, contracts in general restraint of trade, contracts to evade or oppose the revenue laws of another country, wagering contracts, contracts of maintenance or champerty."
Section 20-505 declares that gaming contracts are void and reads as follows: "Gaming contracts are void, and all evidences of debt, except negotiable instruments in the hands of holders in due course, or incumbrances or liens on property, executed upon a gaming consideration, are void in the hands of any person. Money paid or property delivered up, upon such consideration, may be recovered back from the winner by the loser, if he shall sue for the same in six months after the loss, and after the expiration of that time it may be sued for by any person, at any time within four years, for the joint use of himself and the educational fund of the county." These are the only provisions in the Georgia law concerning gambling and wagering contracts. However, from the two above-quoted code sections it can be plainly seen that it is against public policy to enter into such contracts.
CORPORATIONS-Debenture Preferred Stock The Secretary of State, Ex-Officio Corporation Commissioner, must charge
the fee of ten (10c) cents per $1,000.00 of authorized capital stock on debentures authorized by the charter to be converted to preferred stock.
December f2, 1951
Honorable Ben W. Fortson Secretary of State
OFFICIAL OPINWN FACTS:
WGOV, Inc., petitioned for and obtained a corporate charter by the Superior Court of Lowndes County on October 30, 1951. Among other provisions relating to capital structure was one authorizing the issue of $500,000.00 of "Debenture Preferred Stock," Charter, Paragraph 6. This debenture preferred stock is to be divided into "shares" of $100.00 each, to bear "interest" at the lawful rate unless fixed at some lower rate by a resolution of the stockholders and approved by the directors. "Interest" is to be cumulative and paya>ble before dividends on preferred or common stock, and it is payable without directors' declaration. Debenture preferred stocks are due and payable at fixed dates. Some doubt exists regarding the priority it enjoys upon liquidation when considered in relation to common creditors but it is higher than no-par common and ordinary preferred.
Paragraph III of the Charter gives these "Debentures Preferred Stocks" a conversion feature after certain conditions precedent have occurred.
QUESTION: Must the Secretary of State, Ex-Officio Corporation Commissioner, charge
the fee of ten (1 Oc) cents per $1,000.00 of authorized capital stock on this $500,000.00 of "Debenture Preferred Stock"?
ANSWER: Yes. The statute, Georgia Code 22-1809, states that the applicants or their
attorneys must file two certified copies of the application for charter with the Secretary of State and pay to the Secretary of State the following fee: "Ten (10c) cents per $1,000.00 of par value of stock authorized, with minimum fee


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of Five ($5.00) Dollars; and for this purpose stock without par value shall be counted as if it had par value of One Hundred ($100.00) Dollars ver share ..." It is my opinion that the word "authorized" is controlling in this situation. Because of the conversion feature of this "Debenture Preferred Stock", it is authorized capital stock. No amendment to the charter is required for this corporation to increase its capitalization by $500,000.00, although there is some doubt in my mind that the number of shares after conversion is stated precisely.
When a person uses a combination of words that, when taken singly, have rather precise definitions tending in opposite directions, but when taken collectively have no meaning out of context, one is hard put to find out just what is meant. Here, the phrase, "Debenture Preferred Stock", begins by informing the reader that securities in the nature of a debt are referred to and ends by telling him that it is securities proprietary in nature that are referred to. Thus, the name of the security is meaningless.
It is my belief, from the entire charter, that these securities operate m the nature of a debt originally, and as such might permit the corporation to enjoy the tax benefits from that kind of financing and the holder to enjoy the benefits of a creditor before he elects to convert. After conversion, they become proprietary in nature, giving rise to entirely different benefits. Regardless of this initial debt relationship, the charter authorizes $500,000.00 of stock and it is upon this that the Secretary Of State must depend when computing the fee due the State, and I conclude that the law obligates you to collect it.
CORPORAT'IONS-Foreign Corporations (Unofficial) Domesticated foreign corporations have the same rights and privileges as corporations created under the laws of Georgia.
November 14, 1951
Honorable Henry B. Troutman I have your recent letter in which you ask my opinion whether a foreign
corporation, after being domesticated, has a right to own more than five thousand acres of land in the State of Georgia.
Section 22-1504 of the 1933 Code of Georgia provides that no foreign corporation is permitted to own more than five thousand acres of land in Georgia. The amendment to this section found in Georgia Laws, 1945, page 152 does not alter the provision regarding ownership of land, but only relates to minerals, mineral rights, etc.
However, Code Section 22-1601 is as follows: "All foreig.'l corporations doing business in this State, or which hereafter do business in this State, and whose business is not against the public policy of this State, shall have the power to become domesticated m the manner hereinafter pointed out; and upon 'becoming domesticated such corporations and the stockholders thereof shall have the same powers, privileges, and immunities as similar corporations created under the laws of this State, and the stockholders thereof have, subject to the same obligations, duties, liabilfties, and disabilities as if originally created under the laws of this State, and shall no longer have that power of removing causes to the United States courts which inheres in foreign corporations." This Code Section was enacted in Georgia Laws, 1920, page 151 and Georgia Laws, 1926, Extra Session, page 46; that is, this section was passed by the General Assembly subsequent to Code Section 22-1504 which was enacted in Georgia Laws 1877, 1893, 1895.

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Therefore, it would seem that the provision that a foreign corporation, after being domesticated, shall have all the powers and rights of a domesticated corporation was passed by the General Assembly with full knowledge of the fact that there was an existing law prohibiting foreign corporations from owning more than five thousand acres of land in Georgia.
Thus, in my opinion, a foreign corporation that has lbecome domesticated has a right to own more than five thousand acres of land.
COUNTIES--Coroners (Unofficial) The coroner has no authority to deputize any person to act in his absence.
July 30, 1951 Honorable J. M. Tomlinson
This is in reply to your letter of July 17, 1951, in which you ask the question: Can a coroner deputize a person to act as coroner in his absence?
Section 21-204 of the 1933 Annotated Code of Georgia provides the method as to who shall act as coroner when the coroner is absent from the county when needed or will not or cannot take an inquest. This section reads:
"When there is no coroner in a county, or he is absent from the county when needed, or will not or ca'1not take an inquest, any justice of the peace of the county may act as corone:c."
I know of no general statute which authorizes a coroner to deputize any person to act in his absence.
COUNTIES-Coroners (Unofficial) The duties of the coroner under the Vital Statistics Act of 1945.
August 24, 1951 Honorable Robert Culpepper, Jr.
I am replying to your letter of August 15, in which you inquire as to the proper interpretation of the duties of Coroner under Section f!S-1116 of the Code of Georgia of 1933. I am pleased to give you my personal and unofficial views relative to this section of the Code.
Section 88-116 of the Code is codified from the Acts of 1945, pp. 236, 242. This .Act established a complete and comprehensive vital statistics law for the State of Georgia. You will note that this section provides that the person in charge of interment shall file, with the local registrar of the district in which the death occurred or the body was found, a certificate of death within the time prescribed by the Board of Health. It further provides that the person in charge of interment shall obtain and enter on the certificate the personal data required by the State Board of Health from the persons best qualified to supply this. It further provides that if a physician was in last attendance upon the deceased, a certificate must be presented to him, or if no physician was last in attendance, then the person in charge of interment must present a certificate to the Coroner having jurisdiction, who shall thereupon certify the cause of death according to his best knowledge and belief.
Section 88-1116 also provides that where deaths are from criminal violence, or by a casualty, or by a suicide, or suddenly while in apparent health, or when unattended by a physician, or in any suspicious or unusual manner, it shall be reported forthwith to the county coroner, who shall execute a certificate of death upon a form prescribed by the Board.
Section 21-203 of the 1933 Code prohibits a coroner from holding an in-

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quest over any dead body when the cause of death was violence, or accident, or Act of God in the presence of witnesses, unless some person makes affidavit of facts raising a suspicion of foul play, when an inquest shall be had, but at the expense of the party making the affidavit. This section further provides that upon such inquest, if it should appear 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.
The Court of Appeals, in the case of Herndon v. Jones County, 18 Ga. App. 523, has held that witnesses as used in the above-cited Code section means one witness or more.
Considering the above-cited authorities, it would be my per;;onal view that a coroner under subparagraph 4 of Section 88-li16 of the Code would not be authorized to hold an inquest under the provisions thereof if a death occurred in the presence of witnesses. However, in those instances where there were no witnesses at the time of the death and the death occurred under any of the circumstances enumerated in Section 21-203 of the 1933 Code, the coroner would be autho1-ized to hold an inquest in keeping with the laws relative to the holding of inquests.
I do not find any provision in the Vital Statistics Act of 1945, pp. 236, 237 providing for a coroner or physician to be compensated for executing a certificate as provided in Section 88-1116.
COUNTIES-Coroners (Unofficial) There is no p1ovision of the law prohibiting a peace officer from removing a dead body from the scene of death before the arrival of the coroner.
November 26, 1951
Honorable Earnest L. Howell I am in receipt of your recent letter in which you ask my opinion whether
the Police Department has the right to remove dead bodies from the scene before notifying the Coroner, where death has resulted from one of the causes enumerated in Code Section 21-202 of the 1933 Code of Georgia.
Code Section 21-202 of the 1933 Code of Georgia is as follows: "Coroners shall take inquest over dead bodies in their respective counties
as follows: 1. Of all violent, sudden, or casual deaths, when there are no eyewitnesses to the killing or cause of the death, and such deat:1s occurs under suspicious circumstances. 2. Of all sudden deaths in prison, without an attending physician. 3. Of all dead bodies found, whether of pex-sons known or unknown, when it is apparent from the body that violence caused the death, or when the person died or disappeared under suspicious circumstances. 4. Whenever ordered by a court having criminal jurisdiction. It shall be the duty of said court, whenever an affidavit is made and filed with the court that a dead body is found and that the person came to death by violence or foul play, to interrogate and examine other witnesses, if any, as to the necessity for an inquest; and should the court then decide that an inquest is essential to the ends of justice, an inquest shall be ordered."
There is no provision in the Code which states that the Police Department or any authorized officer on duty does not have the right to remove a dead body from the scene of the death. However, I am inclined to the view that the body, if found in one of the situations outlined in the above Code Section, should not be removed without good cause before the Coroner has been notified.
An inquest to be valid must be held super visum corporis, that is, the

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Coroner and jury must have a view of the body. The view of the body should be had by the Coroner and the jury together. The 'body must be minutely and carefully examined for the purpose of seeing whether there are any marks of violence and of ascertaining from its appearance what was the occasion of death.
An inquest should be held forthwith, on receipt by the Coroner of the death or discovery of the body.
I believe th~t it is a safe practice to hold the inquest at the place where the death occurred, but an inquest may be held anywhere in the county over which the Coroner has jurisdiction. It is a general practice, where the body has been removed, for the Coroner and jury to view the body and then proceed to the scene of the death for taking of the testimony at the inquest.
I can certainly visualize instances where it would be necessary to remove the dead body before the arrival of the Coroner.
COUNTIES-Debt (Unofficial) The purchase of real estate by a county on an installment plan is the creation of a debt which is prohibited by the constitutio!l except under certain specified circumstances.
May 23, 1951 Honorable A. M. Kelly
This is in reply to your letter of May 8, 1951 relative to the purchase of real estate by thl.' County of Walton for the sum of $30,000.00 to be paid ~n installments of $5,000.00 per year for six years. I would suggest that you review the case of Renfroe et al. v. City of Atlanta, et al., 140 Ga. 81, wherein the City of Atlanta attempted to contract for certain enumerated property for a total price of $376,800, of which it was agreed that an installment of $50,000 should be paid in the year in which the contract was made, and that the balance should be paid in installments of $75,000 each, except the last, extending through a series of years; that the installments were to be paid annually. There the Supreme Court held that such contract created a debt within the meaning of the constitutional provision of Article 7, Section 1, Paragraph 1 of the constitution, the contract having been entered into without submitting the question to a preliminary vote of the people and therefore was invalid.
Also in the case of Dancer, Ordinary vs. Shingler, et al., 147 Ga. 82, which is a case involving the purchase of a tract of land by a county for a total purchase price of $17,500 with a down payment and the balance to be paid in yearly installments, the Supreme Court of Georgia held that the county authorities could not legally enter into such contract in view of its conflict with the provisions of A!'ticle 7 of the constitution, prohibiting the creation of debts except under certain specified circumstances. The case of Hogan et al. vs. State of Georgia, 133 Ga. 875-881 may also be of interest to ycu.
COUNTIES-Lunacy Commission (Unofficial) It is not necessary that there be a practicing physician on :1 county lunacy commission.
April 16, 1951 Mr. James N. Stewart
I have received your letter in which you ask my opm10n concerning a lunacy commission in your county in which you have but one physician.
It is my opm10n that yo!lr problem is readily solved by Code Section 49-616 of the Code of Georgia which provides as follows:

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"49-616-Lunacy commission in certain counties-In any county where there shall be no regularly employed county physician, or no regularly employed county attorney, the commission provided for in section 49-604 shall be issued by the ordinary, to six reputable persons, one of whom shall be a practicing physician of the county in good standing, and the remaining five shall be qualified jurors of the county, not related to any person at interest in said cause. Said commission shall conduct such examination and make a return thereof in the same manner and subject to the same provisions as the commission provided for in section 49-604. In case there shall be no practicing physician in any such county, said commission shall be issued to some reputable practicing physician of an adjoining county. If no such physician is available either in the county in which the proceeding is had or in an adjoining county, said commission shall issue to six reputable persons, residents of said county, who are qualifhd jurors thereof and not related to any party interested in said cause."
From the above Code Section you can readily see that wh,:lre you do not have the physician available to proceed under Code Section 49-604 the commission can be composed of six reputable persons.
I believe that you have been proceeding under this plan, heletofore, and I do not know of f)ny reason why you should not continue to do so. The Acts of the General Assembly as set out in Georgia Laws 1950 do not alter this procedure.
COUNTIES-Sheriffs (Unofficial) 1. Sheriffs are entitled to collect only such fees as are allowed them by law. 2. Fireworks in the counties are controlled exclusively by the county governing authorities.
November 27, 1951 Messrs. Williams and Smith
This will acknowledge receipt of your letter of November 7, 1951 in which you request interpretations on two questions of law.
First, you ask whether or not the Sheriff of Emanuel County would have the right to charge a fee for the collection of tax fi. fas. placed in his hands for collection.
Section 92-8001 of the 1933 Annotated Code of Georgia reads as follows: "Whenever the sheriff or other officer of any county shall collect any tax execution over $100, he shall be entitled to $1 for costs; and for collecting any tax executio;1 of $100 or under, 50 cents for costs." Section 92-8003 of the 1933 Annotated Code of Georgia reads as follows: "If a tax execution for less than $100 is levied by a sheriff, his fee for said levy shall be that allowed constables."
With reference to the above-quoted Code Sections, I suggest that you read the law laid dovm in the case of Adamson, Sheriff v. Leathers, Solicitor General, 60 Ga. .App. 382.
From my interpretation of the Code Sections cited and the ruling in the case of Adamson, Sheriff v. Leathers, Solicitor General, 60 Ga. App. 382, I do not think the Sheriff would be entitled to a 10% commission on fi. fas. that he collects. He would only be entitled to such fees as are allowed him under the law.
In question '2 you request an interpretation as to whether or not the Com-

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missioners of Emanuel County would have the right to pass a resolution or ordinance prohibiting the sale of fireworks in Emanuel County.
The Act of the General Assembly (Georgia Laws 1949, p. 1000) sets forth the manner in which a person, firm or corporation may obtain a license to sell fireworks outside of incorporated areas. Said Act reads as follows:
"An Act to provide that every person, firm or corporation that sells, either at wholesale or 1etail, distributes or gives away fireworks shall first secure a license from the county governing authority; to confer authority on the commissioner of roads and revenues, or other governing authority Jn said counties to grant, renew, refuse or revoke such licenses, and to make rules and regulations governing the enjoyment of the same as they may deem proper for the public good and the public safety; to confer authority on the commissioner of roads and revenues, or other governing authority of the several counties to levy a license or occupational tax on such persons, firms or corporations; to provide for the punishment for violations of this Act; and for other purposes.
"Be it enacted by the General Assembly of Georgia and it is hereby enacted by the authority of the same:
"Section 1. Be it enacted by the General Assembly of Georgia and it is hereby enacted by the authority of the same, that from and after the passage of this Act, no person, firm, or corporation shall sell at either wholesale or retail, give away or distribute, any fireworks outside the limits of any incorporated municipality without having first obtained a license so to do from the commissioner of roads and revenues of such county, or other governing authority.
"Section 2. Be it further enacted by the authority aforesaid that the commissioner of roads and revenues, or other governing authority shall have the right and autho:rity to grant, renew, refuse or revoke such licenses, and shall have the authority to issue the same subject to and upon such terms, conditions, rules and regulations as they may deem proper for the public safety and the public good."
"Section 3. Be it further enacted by the authority aforesaid that the commissioner of roads and revenues, or other governing authority of the several counties shall have authority to levy a license or occupational tax on all persons, firms or corporations included within the provisions of this Act, the payment of which ~.hall be a condition precedent to the granting of such license, and any person, firm or corporation selling, giving away or distributing fireworks without having secured a license as provided by this Act shall be guilty of a misdemeanor.
"Section 4. The term 'fireworks' shall not include toy pistols, toy canes, toy guns, or oth~r devices in which paper caps containing twenty-five hundredths grains or less of explosive compound are used, providing they are so constructed that the hand cannot come in contact with the cap when in place for use, and toy pistol paper caps which contain less than twenty hundredths grains of explosive mixture, the sale and use of which shall be permitted &t all times.
"Section 5. Be it further enacted by the authority aforesaid that this Act shall become effective in any county of this State upon the same being recommended by a grand jury in such counties.
"Section 6. Be it further enacted that all laws and parts of laws in conflict herewith be and the same are hereby repealed."
Under Section 2 of the above Act, it is specifically set forth that the Commissioner of Roads and Revenues or other governing authority shall have the right and authority to grant, renew, refuse or revoke such license, and shall have the authotity to issue the same subject to and upon such terms, condi-

245
tions, rules and regulations as they may deem proper for the p1blic safety and the public good.
My interpretation of Section 2 of this Act is that the County Commissioners or other county authorities would have the right to prohibit the sale of fireworks in the county.
COUNTIES-Ta-.. Assessors (Unofficial) The compensation of tax assessors is fixed by the governing authorities of the counties at not less than $3.00 per day for actual days worked.
March 1, 1951 Mr. J. M. Clement
With furth~r reference to your letter of February 17, 1951, in regard to the compensation of County Board of Tax Assessors, I am pleased to give you the Section of om Code dealing with the compensation of such board members. Section 92-6908 of the Code of Georgia of 1933, Annotated, reads as follows:
"92-6908. Compensation.-The members of the board shall be paid as compensation for their services such an amount as may be fixed from time to time by the board of county commissioners or ordinary, as the affairs of the county may be under the jurisdiction of the one or the other: Provided, that the compensatio'l to be paid said members shall not be less than $3 per day each, for the time they are in actual discharge of the duties required of them. The compensation of the members of said board, and such oth8r expenses as may be necessary to be incurred in the performance of the duties of the board, shall be paid from the county treasury in the same manner as other payments by the county are made."
Thus, it will be noted that the compensation of board members is fixed by the county commissioners or ordinary whichever one has the affairs of the county under their jurisdiction, not to be Jess than $3.00 per day each for the time in actual discharge of their duties. The compensation of the members of the board could be in excess of $3.00 per day providing the commissioners or ordinary so fixed it.
COUNTIES-Tax Assessors (Unofficial) County tax assessors are appointed by the county commissioners or other county govenling authority.
March 14, 1951 Honorable W. H. Brisendine
This is with further reference to your letter of March 10, 1951 in which you request information as to the method of appointment of members of the County Board oi Tax Assessors.
Section 92-6903 of the Code of Georgia provides the method Of such appointment. This section was amended by Act No. 456, which was passed at the recent session of the General Assembly. This Code Section, as amended by the 1951 Act, now reads as follows:
"County Board of tax assessors; creation; appointment; commission. There is hereby established in each of the several counties of this State, a county board of tax assessors, which board shall consist of three members to be appointed by the Board of County Commissioners of by a majo!'Ity thereof, or by the Ordinary in counties which have no board of county commissioners. Provided that in all counties of this State which shall have a population of

246
less than 25,000, according to the United States census of 1950 or by any future census of the United States, the boards of tax assessors in those counties shall consist of not less than three nor more than five members, otheTwise qualified, the number of members to serve on such boards in said counties to be determined by the County Commissioners or other county governing authority. The order making such appointment shall be regularly entered upon the record of the superior court of the county, and a certificate from the clerk of the superior court reciting said order, and that such person has taken the oath required by law, shall constitute the commission of the membecs and no other' or further commission shall be required."
COUNTIES-Tax Collectors The County tax collector has no authority in determining the depository for his tax collections.
June 18, 1951
Honorable W. Harvey Atkinson Director, Property and License Tax Unit
OFFICIAL OPINION QUESTION:
Does the county tax collector have the authority to determine the depository for his tax collections? LAW:
Section 92-4901 of the Code of Georgia of 1933, Annotated: "Collector's duties enumerated.-It shall be the duty of the tax collector to"1. Diligently collect and promptly pay over in the funds allowed by law the State and county taxes to the State Treasurer and the county treasurer, respectively.
* * *
"8. Conform to such rules as may be furnished, and to obey such orders as may 'be given by the Commissioner of Revenue.
* * *
"12. Perform all other duties that the law requires, and which necessarily under the law appertain to his office."
Section 92-4904 of the Code of Georgia of 1933, Annotated: "Audit of cash book.-The county tax collectors shall present such record book to the officials of the several counties having in their charge the administration of the county business at the times prescribed by law for making their reports to them for a checking and auditing of the same, and to have the indorsement of the name and authority of such official entered therein, and the date of such entry noted. But the checking, auditing and signature of such official in the record book shall at no time be construed, nor is the same intended as a binding or final settlement with the county tax collector, but shall only be evidence that he has reported to the county authority as required by law, and that such report checks and is in accord with the record book that he is hereby required to keep." Section 92-1906 of the Code of Georgia of 1933, Annotated: "Tax collectors to make account of actings to ordinary or other authority. -It shall be the duty of the ordinaries or other authorities having charge of county affairs, to compel the tax collectors of their respective counties to come before them at F:uch times as may be designated by them, not less than twice in each year, to render an account of their official actings and doings respecting the county tax and funds, and to make a full and complete exhibit of

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their books, vouchers, accounts, and all things pertaining to their several offices."
Section 23-904 of the Code of Georgia of 1933, Annotated: "Jurisdiction and powers.-The board of county commissioners of roads and revenues hereby created shall have exclusive jurisdiction ever and control of all county matters, such as ... county finances, the levying and collection of taxes for county purposes, the management, control over and disbursing of county funds, . . . the supervision over and control of, and exclusive jurisdiction over and in all matters wherein jurisdiction is now vested in the ordinaries in counties in which there is no board of county commissioners of roads and revenues." Section 92-3808 of the Code of Georgia of 1933, Annotated: "Execution against persons holding county money.-The ordinaries or other county authorities in charge of county affairs may compel all persons, their heirs, executors, or administrators, who have in their hands any county money, collected for any county purpose whatever, to pay over the same." Hobbs and Tucker v. Dougherty County (1896) 98 Ga. 574. "... the commissioners could issue execution against any person holding county funds. It is not necessary that the person holding such funds shall be an officer of the county. If Hobbs & Tucker, as bankers, received this money on deposit from the treasurer and tax-collector of the county they become holders of county funds, whether the deposit was special or general; and they stood upon the same footing as these officers upon refusal to pay the funds to the county when demanded of them." Section 100-112 of the Code of Georgia of 1933, Annotated: "Tax Collectors may pay funds at depositories.-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 depository than the one named by the Governor; 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 .;Jl moneys collected by them for and on account of State taxes.'' ANSWER: From the above citations, it appears that provisions have been made for disposition of county funds when they 'become ascertained, and for State funds generally. Also shown are requirements for the tax collector';; accounting to the County Ordinary and County Commissioners. But, nowhere in the Georgia Laws does there appear any authority in the County Commissioners to control anything other than the ascertaining of the County funds and the disposition of those funds after they have been ascertained. It is my opinion that the tax collector is responsible only to the Commissioner of Revenue: for the general tax collection fund until the separate county and state funds have been ascertained.
COUNTIES-Tax Collectors (Unofficial) Tax collectors are not entitled to 10% of the excess of 90% collected in regard to school taxes and bonds as commissions.
March 9, 1951
Honorable W. C. Kemp This is in reply to your letter of February 8, 1951 in which you ask

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whether or not Tax Collectors are entitled to 10 per cent commission of County Wide School Taxes, County Wide School Bonds, and Local School Bonds after 90 per cent of the Digest has been collected.
The 1933 Code of Georgia, Annotated, Supplement, holds as follows:
"To what commissions apply; delinquent taxes.-As far !!S the tax collectors are concerned, the rates and schedules prescribed by section 92-5301 shall apply upo~ 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 the 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 all 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."
As will be seen, the above quoted section makes a provision for the Tax Collector to collect as his commission 10 per cent of all amounts collected above 90 per cent of the Digest. This applies, as will be observed, to the ad valorem net digests.
Section 32-1106 of the Code of Georgia of 1933, Annotated, Supplement, provides:
"Collection of school taxes by county tax collector; commissions.-The county tax collector shall continue to collect unpaid county school taxes formerly levied and payable under the provisions of this section, and shall be entitled to commission of 2lh per cent for collecting the same. He shall pay over to the board of education all moneys collected for the schools once a month. He shall also collect all county school taxes levied under the authority of Article VIII, Section XII, Paragraph I (Section 2-7501) of the Constitution of this State, upon which collections he shall receive a commission of 2% per cent. He shall likewise pay over to the county board of education once a month, all moneys collected under such levies. In those counties where the tax collector or tax commissioner is on a salary basis the fees herein provided for shall be collected by him and paid over to the proper fiscal authorities."
From this section, I am of the opinion that the Tax Collector is not authorized to retain 10 per cent of the excess of 90 per cent collected in regard to school taxes and bonds.
COUNTIES-Temporary Loans (Unofficial) Counties mt:y obtain temporary loans upon compliance with the constitutional provisions on such loans.
April 20, 1951 Honorable R. A. Harrison
Further replying to your letter of March 26, relative to a county obtaining a temporary loan, I am pleased to advise that Paragraph 4, Section 7 of Article 7 of the 1945 Constitution of Georgia provides the method of procedure under which a county may obtain temporary loans.
"'Temporary loans authorized; conditions.-In addition to the obligations hereinbefore allowed, each county, municipality and political subdivision of the State authorized to levy taxes, is given the authority to make temporary loans between January 1st and December 31st in each year to pay expenses for such year, upon the following conditions: The aggregate amount of all such loans of such county, municipality or political subdivision outstanding at any one

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time, shall not exceed seventy-five per centum of the total gross income of such county, municipality or political subdivision, from taxes collected by such county, municipality or political subdivision in the last preceding year. Each such loan shall be payable on or before December 31st of the calendar year in which such loan is made. No loan may be made in <~DY year under the provisions of this paragraph when there is a loan then unpaid which was made in a prior year under the provisions of this paragraph. gach such loan shall be first authorized by resolution fixing the terms of such loan, adopted by a majority vote of the governing body of such county, city nr political subdivision, at a meeting legally held, and such resolution shall a.ppear upon the minutes of such meeting. No such county, municipality or subdivision shall incur in any one calendar year, an aggregate of such temporary loans and other contracts or obligations for current expenses, in excess of the total anticipated revenue of such county, municipality or subdivision for such calendar year, or issue in one calendar year notes, warrants or other evidences of such indebtedness in a total amount in excess of such anticipated revenue for such year."
COURTS-Constables (Unofficial) Constables are entitled to a fee of $1.00 for each return, nulla bona, or otherwise.
January 5, 1951 Mr. Hartwell L. Williams
I am pleased to acknowledge receipt of your recent letter concerning the fees for constables.
You state that the third item of the fees for constables in Section 24-820 of the 1933 Code of Georgia, as listed on page 12 of a pamphlet published by Secretary of State Ben W. Fortson, Jr., is as follows:
"Each return by officer . . . . $1.00.'' You further state that under the Code of 1910 the return was for a nulla bona, and you ask if the third item refers to returning nulla bona or to any return by a constable.
It is true that Section 5404 of the Code of 1895 and Section 6004 of the Civil Code of 1910 allowed a constable thirty cents for the return of nulla bona, but mentioned no other return. However, Section 6066 of the Code of 1910 prescribed a different set of fees for constables of militia districts located within the corporate limits of cities having a population of between 54,000 and 80,000 inhabitants, and this list of fees included, in addition to the item "for returning nulla bona, 50c", an item "for each return by officer, 50c". By an Act approved August 4, 1919 (Georgia Laws 1919, page 101) this section was amended so as to make it apply to all constables, and thns a constable was entitled to 50c for each return.
When the Code of 1933 was adopted this section became Section 24-820. By an Act approved March 28, 1947 (Georgia Laws 1947, page 1449) the fees for constables were increased so that Item 3 allows $1.00 for each return by officer, and Item 10 allows $1.00 for returning nulla bona. Thus, it appears that Item 3, allowing a constable $1.00 for "each return", does not refer only to returning nulla bona, since there is another item allowing $1.00 for such return, but refers to any return by the officer.

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COURTS-Jurors (Unofficial) Some city and county courts in Georgia use less than 12 ll!en on a jury, but not less than 5 men.
August 23, 1951 Honorable Hyman W. Gamso
This will acknowledge receipt of your letter of August 13, 1951, in which you make the following inquiry:
"It would be appreciated if you would advise us whether in any of the civil courts in your State juries are usually composed of less than twelve persons and if so, the name of the court and the number of jurors usually used."
In answer to your inquiry I refer you to a provision of th~ Georgia Constitution which i~ set out in Code Section 2-5101 of the Annotated Code of Georgia of 1933, as codified from the 1!145 Constitution, as follows:
"The right cf trial by jury, except where it is otherwise !'rovided in this Constitution, shall remain inviolate, but the General Assembly may prescribe any number, not less than five, to constitute a trial, or traverse jury, except in the Superior Courts."
We have many courts in Georgia commonly referred to :1.s City Courts, County Courts, Civil Courts, Criminal Courts and Municipal Courts, which have been created by the Georgia Legislature and making provisions for the jury of said Courts to be of less than 12 in number. Some of them provide for 9 jurors and some for 5 and some for 6.
It would be a practical impossibility to give you the names of the different Courts and the number of jurors for each Court.
COURTS-Justices of the Peace (Unofficial) 'The plaintiff is liable for costs in a civil action in a Justice Court when the defendant has no property out of which satisfaction can be made on the execution of the court.
February 5, 1951 Honorable Jewett Barnett
Replying further to your letter of January 27, 1951, your attention is called to the following Section of the 1933 Annotated Code of Georgia, which provides when and how a plaintiff is liable for costs in civil actions in justice courts:
"Section 24-1410. When an execution issued from a justice's court shall be returned by the proper officer, with an entry thereon that there is no property of the defendant out of which satisfaction of the execution can be made, the plaintiff in execution shall be bound and liable for the costs due thereon; and if the plaintiff, upon being notified of the return and the costs being demanded of him, shall fail or refuse to pay such costs, execution therefor may issue against such plaivtiff."
Relative to the costs in civil cases in justice courts when the plaintiff is a non-resident, Code Section 24-1103 provides:
"Justices of the peace shall not be required to file any suit in which the plaintiff is a non-resident of this State, until $2.00 shall have been deposited with said court on account of costs.''

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COURTS-Justices of The Peace When a justice of the peace is deprived of his jurisdiction over a portion of his militia district, he does not lose his authority over the remaining part of the militia district, even though he may reside in that portion over which he has no jurisdiction.
September 18, 1951
Honorable Herman Talmadge Governor
OFFICIAL OPINION FACTS:
Effective January 1, 1952, the corporate limits of the City of Atlanta will be extended. Due to this extension, the militia district in which Honorable C. M. Stewart serves as Notary Public Ex-Officio Justice of the Peace will be partly within the Atlanta City limits and partly without. Judge Stewart's residence is in that part of the militia district which will be within the corporate limits.
QUESTION: Will Judge Stewart still hold his office and continue to exercise authority
over that part of the militia district outside the corporate limits of Atlanta, or will his office be vacated? ANSWER:
For the purpose of this opinion, the laws relating to Justices of the Peace are applicable to Notaries Public Ex-Officio Justices of the Peace.
Under the Constitution of Georgia of 1877, as amended, the General Assembly passed an .Act in 1913 abolishing Justice Courts and the offices of Justice of the Peace and Notary Public Ex-Officio Justice of the Peace within the corporate limits of Atlanta (Ga. Laws 1913, p. 145). No Act has ever been passed which would have the same effect in that part of Fulton County <JUtside the corporate limits of Atlanta and I am of the opinion that the statutes enacted in 1951 extending the corporate limits of Atlanta do not have that effect. Nothing is contained in those Acts which attempts to accomplish that result, and in fact, it is only through the application of the 1913 Act and amendments thereto that this has been effected within the corporate limits of Atlanta.
Even though the office in question lies within the corporate limits of Atlanta, I do not believe that it has been abolished as far as that part of the militia district outside the corporate limits is concerned. The office relates not only to that part of the militia district within the City limits, but also to that part without the City limits. As a practical matter, only the jurisdiction has been affected.
The point has been raised that the office in question would be vacated under the provisions of Section 89-501, Par. 5 of the Code of Georgia, which reads as follows:
".All offices in the State shall be vacated-
"5. Nonresidence-By the incumbent ceasing to be a resident of the State, or of the county, circuit, or district for which he was elected. In the first case the office shall be vacated immediately; in the latter cases, from the time the fact is judicially ascertained."
The territorial limits of the militia district have not been changed. Therefore, we see that the officer in question has not ceased to be a resident of the district for which he was elected. That part of the militia district within the corporate limits does not cease to be a part of the entire district.

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The situation in question is somewhat unusual, but I am of the opinion that Honorable C. M. Stewart will still hold office and continue to exercise authority over that part of his militia district outside the corporate limits of the City of Atlanta.

COURTS-Ordinaries (Unofficial) It is the duty of the ordinary to appoint the commissioners to lay out and define the new Militia Districts.

Honorable M. L. Harris

August 23, 1951

I have received your letter in which you ask my opm10n as to whose duty it is to act in creating new and changing lines of Militia Districts.

It is my opinion that the Militia Districts should be changed in accordance to Code Section 23-204, 1933 Code of Georgia as follows:

"Whenever it may be necessary and expedient to lay out a new militia district, or to change the lines of old ones, or to consolidate or abolish old districts, the ordinary may, at any time, appoint three commissioners, citizens of the district or districts from which it is proposed to make the new district, or change the lines thereof, whose duty it shall be to lay out and define such lines, and report the same to the said ordinary."

COURTS-Ordinaries (Unofficial) The ordinaries have jurisdiction to issue writs of lunacy for any person found within the limits of their respective counties.
August 24, 1951
Honorable L. P. Strickland Replying to your letter of August 13, 1951, relative to the jurisdiction of
the Ordinarys of Georgia to issue writs of lunacy for non-residents, who are temporaril'y within the State of Georgia, I am pleased to refer you to the case of Anderson v. Smith, et al., 76 Ga. 171-181, in which the Supreme Court of Georgia held as follows:
"One of such issues in the petition is to the effect that Mrs. M. C. Anderson at the time of commitment was a resident of Irwin County and not of Wilcox County where the lunacy proceedings were instituted and adjudicated. In Shea v. Gehan, 70 Ga. App. 229, 232 (28 S.E. 2d, 181), the court laid down this principle: 'Neither the Code, Sec. 49-,601, nor the act of 1929, pp. 248 et seq., as amended by the act of 1937, pp. 284 et. seq., and codified as Sec. 49-801 et seq., limits the power of the ordinary over insane persons who are citizens of Georgia and resident in the county, but such statutes are broad enough to embrace, in view of the law in general, the power and jurisdiction of such courts over insane persons who are present in their respective counties.' See also Grier v. McLendon, 7 Ga. 362; Coker v. Gay, 154 Ga. 337 (114 S.E. 217). While these cases are not altogether similar as to their facts to the instant case, they are analogous in principle and under the general law as contained in the Code, Sec. 49-604, the court of ordinary of the county in which the alleged insane person is living and who becomes violent and liable to da herself injury, has jurisdiction notwithstanding the fact that the residence of such alleged insane person may be in some other county in this State. We think the reason for this ruling is sound. It may be that one would become violently insane while living in a county far distant from his legal

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residence, or that the residence of such insane person might be doubtful or difficult of ascertainment. Therefore, the ruling that the ordinary of the county where the alleged insane person is living at the time of being Seized with the violent condition, should have jurisdiction in order to afford protection to the unfortunate one against herself as well as the public."
Your attention is also called to the case of Shea, by guardian ad litem, v. Gehan, 70 Ga. App. 229-233, in which the Court of Appeals of Georgia held:
"The courts of ordinary of the several counties of this State have jurisdiction over any insane person found within the limits of their respective counties without regard to the citizenship and legal residence of such person."
COURTS-Reporters (Unofficial) Court reporters are entitled to their compensation for attending civil as well as criminal courts.
March 28, 1951 Honorable T. L. Williams
Replying further to your letter of March 21, 1951, relative to House Bill No. 131 (Ga. Laws 1951, p. 630), concerning compensation of court reporters, I reach the conclusion and it is my personal opinion from a review of this Act that the General Assembly, by said Act, repealed in its entirety Section 24-3104 of the Code of Georgia as amended by an Act approved February 16, 1949 (Ga. Laws 1949, p. 646), which related to the compensation of court reporters, and enacted in lieu thereof a new Section 24-3104. In doing so it repealed the old provision of said section which set forth at the beginning thereof the words "compensation in criminal cases" and substituted the words ''compensation of court reporters by counties for attendance upon all courts and for reporting criminal cases therein."
It is clear that the General Assembly, by adding the words, "compensation of court reporters by counties for attendance upon all courts" before the words "and for reporting criminal cases therein" intended to make the provisions of said Code Section applicable to civil courts, since there was no question that it applied to criminal courts prior to the Act of 1951.
The General Assembly having made the above cited changes in said section and in view of the following specific provision in said section:
"The judge of the superior court shall authorize and approve for the court reporter a compensation of $20.00 per day, to be paid out of the funds of the county, on the order of such judge, for all days upon which he attends, at the request of the judge, all courts located in the circuit over which he presides; a commital court where capital cases are involved, and coroner's inquests, when ordered to do so by such judge, at the request of the solicitor-general of the circuit, shall be included,"
I reach the further conclusion that an official court reporter is entitled to receive $20.00 per day out of the funds of the county on order of the judge of the Superior Court for all the days on which he attends at the request of the judge of the courts located in the circuit over which such judge presides.
It is my further conclusion that the words "all courts" include civil and criminal courts. In my opinion, a reporter would be entitled to such compensation in a commital court where capital cases are involved and coroner's inquests when ordered to attend by the judge of the Superior Court at the request of the S0Iicitor General of the Circuit.

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COURTS-Sheriff's Fees The Sheriff is not entitled to any fee on a return of a nulla bona unless it is collected out of the defendant in fi. fa.; nor is the Sheriff entitled to any fee on the collection of tax fi. fas. unless the collection is actually made from the defendant in fi. fa.
June 7, 1951 Honorable W. Harvey Atkinson Director, Property & License Tax Unit
OFFICIAL OPINION
QUESTION (1). The situation has arisen in Hancock County where it is necessary to de-
termine exactly what fees the s,heriff of that county is entitled to pursuant to provisions under Code Sections 24-2823 and 92-8001.
QUESTION (2). Specifically, what fees is a sheriff entitled to on tax executions where he
enters a nulla bona or in the case of collection?
LAW: Code Section 92-8001 of the 1933 Annotated Code of Georgia reads as follows: "Whenever the sheriff or other officer of any county shall collect any tax
execution over $100, he shall be entitled to $1.00 for costs; and for collecting any tax execution of $100 or under, 50c for costs. (Acts 1880-1, p. 83)."
The Act of the General Assembly of 1945 (Geol'gia Laws 1945, p, 221), approved March 6, 1945, provided for the collection of tax fi. fas. of $100 or less, each, $1.00 and the collection of tax fi. fas. over $100, each $2.00. This Act also provides for the payment on a return of nulla bona, the sum of $3.00.
On March 19, 1945 Honorable T. Grady Head, then Attorney 'General, in an unofficial opinion given to Honorable 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 fee must be collected from the defendant in fi. fa."
In the case of Keen v. Rouse, 44 Ga., p. 601 it was held: "A sheriff is not entitled to costs on tax fi. fas., whether for State or county taxes, unless the same 'be collected from the defendants."
ANSWER: It is my opinion that the sheriff would not be entitled to any fee on a
return of a nulla bona unless it is collected out of the defendant in fi. fa. It is my further opinion that under the ruling of Keen vs. Rouse, 44 Ga. 601, the sheriff is not entitled to any fee on the collection of tax fi. fas. unless the collection is actually made from the defendant in fi. fa., and upon said collection the sheriff would be entitled to $1.00 where the fi. fa. was in an amount of less than $100 and $2.00 costs for a tax fi. fa. exceeding the amount of $100.

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COURTS-Solidtor General (Unofficial) 1. The State is authorized to pay telephone bills for official business which have been incurred by the Solicitors General. 2. The State is not authorized to reimburse the counties for such bills upon their certificate, since the Solicitors General are the only ones qualified to certify the bills. 3. It is a local question as to whether the counties are obligated to pay such bills.
December 3, 1951 Honorable Carl K. Nelson
In your recent letter you request me to advise you whether: 1. The State is authorized to pay telephone bills incurred by Solicitors General as expense items of his office; 2. 'The State of Georgia is authorized to reimburse the County for the payment of such bills upon certification by proper County officials as to their payment in case the Solicitor General refuses to certify them; 3. There is any obligation on the part of the County to pay such telephone bills. In answer to question number one, the State is authorized to pay telephone bills for official telephone services incurred by Solicitors General provided such bills are certified to the State Auditor in detailed form. In answer to question two, there is no authorization for the State to reimburse a County for the payment of telephone services incurred by the Solicitor General upon the certification of County authorities. The certification must be made by the Solicitor. Your question number three is of local application and requires no answer from the State Law Department.
COURTS-Superior Court Clerks (Unofficial) The fees of the clerks of the Superior Court should be paid out of insolvent costs funds and not out of the general funds of the county.
May 16, 1951 Honorable John R. Rogers
UNOFFICIAL OPINION QUESTION:
Should the fees of the Clerk of the Superior Court be paid out of the county treasury or should they be charged as costs in the individual case and paid out of the insolvent costs fund? ANSWER: Code Section 27-2902 of the Annotated Code of Georgia of 1933, reads as follows: "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 constables in the particular case by which the funds for distribution were brought into court, shall have been allowed and paid. (Acts 1876, p. 108; 1878-9, p. 189.)"

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Code Section 27-2904 of the Annotated Code of Georgia of 1933, reads as follows:
"The moneys so paid in shall be kept separate and distinct from the county funds arising from other sources, and distinct and separate accounts of said funds shall also be kept as to what court the same was received from, by the county treasurer, and the same shall be paid only for insolvent costs, and in ease where defendants have been acquitted in the manner hereinafter directed. (Acts 1876, p. 108.)"
In the case of Felton vs. Watts, Treasurer, 162 Ga. p. 216, Headnote 1 reads as follows:
"This case is controlled by the case of Deeatur Bank & Trust Co. v. Napier, 153 Ga. 661 (113 S.E. 89.) The provisions of the act of the General Assembly (Acts 1917, p. 295, 3) are identical with the provisions of the act construed in that case. In that case, as well as in this, it was sought by mandamus to compel the treasurer of the county, or 1bank acting as treasurer in the former case, to apply funds, not from the "fine and forfeiture fund," but from the county's general funds, to the payment of insolvent costs which accrued prior to the passage of the salary act. The court did not err in refusing mandamus absolute."
It is my opinion that all funds in criminal procedures from forfeitures and fines should be paid into the county treasury and kept by the treasurer in a separate account from the general county funds. The Clerk of the Superior Court should not be paid out of the general funds of the county, but should only be paid out of the funds held by the county treasurer in the account from forfeitures and fines.
COURTS-Superior Courts (Unofficial) The clerks must transmit the transcript of record to the appellate court notwithstanding the fact that the costs have not been paid.
Sepember 6, 1951 Miss Hattie Powell
This is in further reply to your letter of August 23, 1951, in which you inquire as to the costs being paid (both trial and transcript) when a case is appealed to a higher court at the time the transcript is prepared, unless a pauper's affidavit is filed.
Code Section 24-2729 of the Annotated Code of Georgia, 1933, reads as follows:
"When a clerk transmits a record to the appellate courts, except in cases where affidavit of ina,bility to pay cost is filed, he may make out a bill of eosts for such transcript, and when presented to the judge of the court and by him found to be correct, the judge shall award, either in term time or vacation, judgment in favor of the clerk for such cost."
In 111 Georgia Reports, page 89 (6), In The Matter of Contempt By Four Clerks, the Court held:
"It is the duty of the clerk to transmit the transcript notwithstanding the plaintiff in error has neither filed a pauper affidavit nor paid the costs due the clerk for making out the transcript."
In the case of Bethea, administrator, v. Dixon et al., 72 Ga. .App. 384 (1), the Court held:
"The failure of the plaintiff in error to pay the costs for sending up the transcript of the record from the trial court to the appellate court is not a good ground for the dismissal of the writ of error. The clerk is entitled to a

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judgment for the amount of such unpaid costs, under the provisions of the Code, Sec. 24-2729, except in cases where affidavit of inability to pay cost is filed."
It is my unofficial opinion that the above-quoted code section, together with the ruling of the Supreme Court of Georgia, and the Court of Appeals, shows that it is mandatory upon the Clerk of the lower court, from which said case is appealed, to send up the record and transcript in said case whether or not the costs have been paid or a pauper's affidavit filed.
The trial court, from which an appeal to the appellate courts are filed, has no jurisdiction of the case until the remittitur from the appellate court is received by the Clerk of the trial court.
CRIMES AND PUNISHMENT-Adultery, Bigamy, etc. (Unofficial) Definition of certain crimes against the family.
November 20, 1951
Mr. William S. Green This is to reply to your letter of November 10, 1951. In your letter you
request some information concerning the law of offenses against the family, such as adultery, bigamy, desertion, etc. Below I will cite Code sections which deal with the subject about which you make inquiry:
Code Section 26-5601, of the Annotated Code of Georgia, 1933, reads as follows:
"26-5601. Definition;-Polygamy or bigamy consists in knowingly having a plurality of husbands or wives at the same time."
Code Section 26-5602 reads as follows: "26-5602. Punishment, if before married.-Any person being married who shall marry another person, the lawful husband or wife being alive, and knowing that such law'ful husband or wife is living, shall be punished by confinement at labor in the penitentiary for not less than two years nor more than 10 years, and the second marriage shall be void." Code Section 26-5603 reads as follows: "26-5603. Exceptions; five years' absence.-Five years' absence of the husband or wife, and there being no information of the fate of such husband or wife, shall be sufficient cause of acquittal of the person indicted under the preceding section; and the issue of such second marriage, born before the commencement of any prosecution for polygamy, or within the ordinary time of gestation thereafter, shall, notwithstanding the invalidity of such marriage, be considered as legitimate." Code Section 26-5604 reads as follows: "26-5604. Punishment, if before married.-Any unmarried man or woman who shall knowingly marry the wife or husband of another, shall be punished by imprisonment and labor in the penitentiary for not less than one year nor more than three years." Code Section 26-5701 reads as follows: "26-5701. Punishment.-Any person who shall commit incestuous fornication or adultery shall be punished by imprisonment and labor in the penitentiary for not less than one nor more than 20 years." Code Section 26-5801 reads as follows:
"26-5801. Punishment; suspension of prosecution by marriage.-Any man and woman who shall live together in a state of adultery or fornication, or of adultery and fornication, or who shall otherwise commit adultery or fornication, or adultry and fornication, shall be severally indicted, and shall be severally

258
punished as for a misdemeanor; but it shall, at any time, be within the power of the parties to prevent or suspend the prosecution and punishment by marriage, if such marriage can be legally solemnized.
Code Section 26-5901 reads as follows: "26-5901. Sodomy defined.-Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman." Code Section 26-5902 reads as follows: "26-5902. Punishment of sodomy.----'The punishment of sodomy shall be imprisonment at labor in the penitentiary for and during the natural life of the person convicted." Code Section 26-5903 reads as follows: "26-5903. Bestiality defined.-Bestiality is the carnal knowledge and connection against the order of nature, by man or woman in any manner with a beast." Code Section 26-5904 reads as follows: "26-5904. Punishment of bestiality.-The punishment of bestiality shall be imprisonment in the penitentiary for not less than five years nor more than 20 years." Code Section 26-6001 reads as follows:
"26-6001. Definition and punishment.-Any person who shall, by persuasion and promises of marriage or other false and fradulent means, seduce a virtuous unmarried female and induce her to yield to his lustful embraces and allow him to have carnal knowledge of her, shall be punished by imprisonment and labor in the penitentiary for not less than two or more than 20 years."
Code .Sectio11 26-6002 reads as follows:
"26-6002. Prosecution may be stopped by marriage; bond of seducer.-A prosecution under the preceding section may be stopped at any time before arraignment and pleading, and not otherwise, by the marriage of the parties, or a bona fide and continuing offer to marry on the part of the seducer: Provided, that the seducer shall, at the time of obtaining the marriage license from the ordinary of the county of the female's residence, give a good and sufficient bond in such sum as said ordinary may deem reasonable and just, taking into consideration the condition of the parties, payable to said ordinary and his successors in office, and conditioned for the maintenance and support of the female and her child or children, if any, for the period of five years. If the defendant is unable to give the bond, the prosecution shall not be at an end until he shall live with the female in good faith for five years. In case the defendant fails to comply with the provisions of this section, the wife shall be a competent witness to testify against the husband in all such cases, whether the marriage to suspend said prosecution was before or after indictment of said defendant."
as Desertion is not designated a crime under the Georgia statutes. How-
ever, Section 30-102 makes desertion a ground for divorce where the desertion is willful and continued for a term of three years.
Abandonment of minor children by a father, leaving them in a dependent condition, is made a misdemeanor under Code Section 74-9902, and provides further, the child abandoned by the father shall be considered to be in a dependent condition where the father does not furnish sufficient food and clothing for the needs of the child.
A misdemeanor is punishable by a fine of $1,000.00, 12 months in public works, 6 months in common county jail, any one or all three of said punishments or any combination of said punishments.

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CRIMES AND PUNISHMENT-Criminal Law (Unofficial) 1. The crimes of burglary and larceny were the same in 1933 as they were in 1931. 2. A felony is a crime punishable by death or a term in the penitentiary,
and a misdemeanor is any lesser crime. 3. Section 27-2501 of the 1933 Code of Georgia provides that the judge, upon the recommendation of the jury, may reduce a felony to a misdemeanor in certain cases.
June 22, 1951
Mr. Hyman Kronick This will acknowledge receipt of your letter of June 18, 1951, in which you
ask the following questions: 1. Is the statute defining 'burglary and larceny of an auto the same in 1931
as it was according to the 1933 Code? The answer to question one is yes. 2. What is the difference between a felony and a misdemeanor? In answer to your second question, it can be said that a felony is a crime
which the offender shall be sentenced to a term in the penitentiary. A misdemeanor is an offense for which the offender may be sentenced to the public works camp, or he may be allowed to pay a fine, or either one or both. The fine not to exceed $1,000. and the prison sentence not to be more than 12 months on the public works and 6 months in the common county jail.
3. What Section of the Code makes it possible for the jury or the court to reduce the charge from a felony to a misdemeanor?
The answer to question three can be found in Code Section 27-2501 of the Annotated Code of Georgia of 1933, which provides as follows:
"All felonies, except treason, insurrection, murder, manslaughter, assault with intent to rape, rape, sodomy, foeticide, mayhem, seductio11, arson, burning railroad 1bridges, trainwrecking, destroying, injuring, or obstructing railroads, perjury, false swearing, and subornation of perjury or false swearing, shall be punished by imprisonment and labor in the penitentiary for the terms set forth in the several sections of this Code prescribing the punishment of such offenses; but on the recommendation of the jury trying the case, when such recommendation is approved by the judge presiding on the trial, said crimes shall be punished as misdemeanors. If the judge trying the case sees proper, he may, in fixing the punishment, reduce such felonies to misdemeanors."
CRIMES AND PUNISHMENT-Lottery (Unofficial) Operating a Lottery is a misdemeanor in Georgia.
October 24, 1951
Mr. Max L. Alpern This is in reply to your letter of October 18, 1951 in regard to the stage
show entitled "Take a Number." You attach to your letter an Exhibit which you refer to as "Format of Take a Number Stage Show." In this Exhibit you set out a plan and method whereby you expect to give away prizes to persons who have been awarded a certain numbered card, the winner to be determined by a drawing, and conditioned upon the ability of the person whose name has been drawn to answer certain questions. Your letter has been carefully read and the statement of method set out in the Exhibit has been carefully read and considered.
Under the Constitution and laws of this State the Attorney General is pro-

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hibited from g1vmg official opmwns to anyone other than the Governor and heads of various departments of the State pertaining to the interest of the State. However, I am glad to cite certain provisions of the law which might be applicable to the enterprise which you propose to operate.
Article I, Section II, Paragraph IV of the Constitution of Georgia provides as follows:
"Lotteries.-All lotteries, and the sale of lottery tickets, are hereby prohibited; and this prohibition shall be enforced by penal laws."
Section 26-6501 of the Annotated Code of Georgia of 1933 provides as follows:
"Sale, etc. of lottery tickets.-Any person who, either by himself or his agent, shall sell or offer for sale, or procure for or furnish to any person any ticket, number, combination, or ,chance, or anything representing a chance, in any lottery, gift enterprise, or other similar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor."
Section 26-6502 of the Annotated Code of Georgia of 1983 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 valua,ble thing, shall be guilty of a misdemeanor."
I also call your attention to the case of Barker v. The State, 56 Ga. Appeals 705 (2) which l'eads as follows:
"The operator of a 'bank night' or jackpot by which a theater offers a prize, the winner to be determined by lot or drawing which is conducted by allowing all members of the public who present themselves at the box-office to register, and the registrant's name or number is placed on a card in a container which is placed on the stage, and after the performance a card containing a number is drawn from the container by lot, and the name of the winner or the number is announced inside and outside of the theater, and if the winner is outside he can enter the theater within three minutes or such other reasonable time as is fixed by the proprietor, and claim the prize, if not a 'lottery,' is at least a 'gift enterprise' within the meaning of the Code, Section 26-6501. And this is true although the holder outside of the theater of the winning name or number has not paid or bought a ticket as a condition precedent to the placing of his name or number in the container from which the winning number is drawn; this for the reason that the registrant card holders as 2 body collectively paid the theater for the chances distributed, although some were given away."
CRIMES AND PUNISHMENT-Murder (Unofficial) There are no degrees of murder in Georgia.
February 27, 1951 Miss Nellie O'Hare
This is in further reply to your letter of February 23, 1951, in which you request that I send you information on first degree murder, second degree murder, third degree murder and manslaughter.
There are no degrees in murder in Georgia. Code Section 26-1001 of the Annotated Code of Georgia of 1933, defining homicide reads as follows: "Homicide is the killing of a human being, and is of three kinds, murder, manslaughter, and justifiable homicide."

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Code Section 26-1002 of the Annotated Code of Georgia of 1933, defining murder reads as follows: (Underscoring ours)
"Murder is the unlawful killing of a human being, in the peace of the State, by a person of sound memory and discretion, with malice aforethought, either express or implied."
Code Section 26-1003 of the Annotated Code of Georgia of 1933, defining express malice reads as follows:
"Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof."
Code Section 26-1004 of the Annotated Code of Georgia of 1933, reads as follows:
":Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abondoned and malignant heart."
Code Section 26-1005 of the Annotated Code of Georgia of 1933, fixing the punishment for murder reads as follows:
"The punishment for persons convicted of murder shall be death, but may be confinement in the penitentiary for life in the following cases: If the jury trying the case shall so recommend, or if the conviction is founded solely. on circumstantial testimony, the presiding judge may sentence to confinement in the penitentiary for life. In the former case it is not discretionary with the judge; in the latter it is.
"Whenever a jury, in a capital case of homicide shall find a verdict of guilty, with a recommendation of mercy, instead of a recommendation of imprisonment for life, in cases where by law the jury may make such recommendation, such verdict shall be held to mean imprisonment for life. If, in any capital case of homicide, the jury shall make any recommendation, where not authorized by law to make a recommendation of imprisonment for life, the verdict shall be construed as if made without any recommendation."
Code Section 26-1006 of the Annotated Code of Georgia of 1933, defining manslaughter reads as follows:
"Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of pa:ssion, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection."
Code Section 26-1007 of the Annotated Code of Georgia of 1933, defining voluntary manslaughter reads as follows:
"In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should have been an interval between the assault or provocation given and the homicide, of which the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and be punished as murder."
Code Section 26-1008 of the Annotated Code of Georgia of 1933, fixing punishment for voluntary manslaughter reads as follows:

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"Voluntary manslaughter shall be punished by confinement and labor in the penitentiary for not less than one nor longer than 20 years."
Code Section 26-1009 of the .Annotated Code of Georgia of 1933, defining involuntary manslaughter reads as follows:
"Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence, in an unlawful manner: Provided, that where such involuntary killing shall happen in the comminsion of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the pror,ecution of a riotous intent, or of a crime punish!tble by death or confinement in the penitentiary, the offenses shall be deemed and adjudged to be murder."
Code Section 26-1010 of the Annotated Code of Georgia of 1933, fixing the punishment of involuntary manslaughter reads as follows:
"Involuntary manslaughter, in the commission of an unlawfnl act, shall be punished by confinement and labor in the penitentiary for not less than one nor longer than three years. Involuntary manslaughter, in the commission or performance of a lawful act, where there has not been observed necessary discretion and caution, shall be punished as for a misdemeanor."
Code Section 26-1011 of the Annotated Code of Georgia of 1933, which deals with justifiable homicide reads as follows:
"There being no rational distinction between excusable and justifiable homicide, it shall no longer exist. Justifiable homicide is the killing of a human being by commandment of the law in execution of public justice; by permission of the law in advancement of public justice; in self-defense, or in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either; or against any persons who manifestly intend and endeavor, in a riotous and tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein."
CRIMES AND PUNISHMENT-Nudism (Unofficial) Nudism per se is prohibited by law in Georgia.
February 12, 1951 Mr. Norval E. Packwood
This in in further reply to your letter dated February 5, 1951, in which you inquire as to the laws on the statute books of Georgia, which tend to have any relation to the practice of nudism .per se as advocated by your association. You also state that you have had numerous inquiries in your National Office from interested parties in this State.
Code Section 26-6101 of the Annotated Code of Georgia of 1933, reads as follows:
"Any person who shall be guilty of open lewdness or any notorious act of public indecency tending to debauch the morals shall be guilty of a misdemeanor."
The Supreme Court of Georgia in the case of Gilmore vs. The State (118 Georgia, page 299) held, "That public and indecent exposure of the person was punishable as a misdemeanor."

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CRIMES AND PUNISHMENT-Simple Larceny (Unofficial) The crime of simple larceny may be either a felony or a misdemeanor as provided by law.
September 21, 1951
Lt. Colonel Donald E. Matthews This is to acknowledge receipt of your letter of September 12, 1951,
in which you ask two questions, to wit: 1. "In a charge of simple larceny against a seventeen year elci male, is the
offense considered to be a felony or a misdemeanor? 2. "Upon conviction of a seventeen year old male for simple larceny, what
is the maximum punishment which could be imposed?" Your second question will be answered first: A 17 year old male convicted
of a crime in Georgia is in the same status as any other adult person. In answer to your first question I wish to cite you Section 26-2601 of the
Annotated Code of Georgia of 1933, which defines the several kinds of larceny and reads as follows:
"Larceny, or theft, as contradistinguished from robbery by violence, force, or intimidation, shall consist of: 1. Simple theft or larceny. 2. rheft or larceny from the person. 3. Theft or larceny from the house. 4. Theft ,1r larceny after a trust or confidence has been delegated or reposed."
Section 26-2602 of the Annotated Code of Georgia of 1933, defines simple larceny and reads as follows:
"Simple theft or larceny is the wrongful and fradulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same. 'The thief may be indicted in any county in which he 1nay carry the goods &tolen."
Section 26-2625 of the Annotated Code of Georgia of 1933, fixes punishment for simple larceny generally and reads as follows:
"All simple larcenies of the personal goods of another, not mentioned or particularly designated in this Code, shall be punished as misd~meanors."
Section 26-2625 of the Annotated Code of Georgia of 1933, fixes punishment of larceny of motor vehicles. A motor vehicle is personal property and Section 26-2603 of the Code makes such a larceny a felony.
Section 26-2606 of the Annotated Code of Georgia of 1933, fixes the punishment of horse stealing and makes such larceny a felony.
Cattle, of course, is personal property and Code Section 26-2607 fixes cattle stealing as simple larceny and reads as follows:
"Cattle stealing shall be denominated simple larceny, and be so charged in the indictment, and shall include the theft of any horned animal, and all animals having the hoof cloven, except hogs."
Section 26-2609 of the Annotated Code of Georgia of 1933, makes the crime of cattle stealing a felony.
Section 26-2610 of the Annotated Code of Georgia of 1933, deals with hog stealing and is designated as simple larceny and reads as follows:
"The stealing of a hog is simple larceny, and shall be so charged in the indictment, and the hog so described that it may be identified by the owner."
Section 26-2611 of the Annotated Code of Georgia of 1933, fixes the punishment of hog stealing and prescribes that such crime shall be punished as provided in Code Section 26-2609 above referred to which deals with the stealing of cattle.
Section 26-2612 of the Annotated Code of Georgia of 1933, provides as follows:
"All other domestic animals which are fit for food, and also dogs, may be

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subjects of simple larceny; and any person who shall steal any such animal shall be guilty Of a misdemeanor."
Section 26-2614 of the Annotated Code of Georgia of 1933, makes it a misdemeanor for one to be guilty of stealing oysters or shells.
Section 26-2615 of the Annotated Code of Georgia of 1933, reads as follows: "If any person shall take and carry away any paper, document, deed, will, or other writing relating to real or personal estate, with an intention to impair, prevent, or render difficult the establishment of a title to real or personal estate, or mutilate, cancel, burn, or otherwise destroy such paper, document, deed, will, or other writing, with the intention aforesaid, he shall be guilty of simple larceny, and be punished by imprisonment and labor in the penitentiary for not less than one year nor more than three years." This section makes the acts mentioned therein simple larceny but provides for penitentiary imprisonment. (Any crime punishable by penitentiary imprisonment is a felony.) Section 26-2516 of the Annotated Code of Georgia of 1933, provides as follows: "If any person shall take and carry away any bond, note, bank bill, due bill, or paper or papers seeuring the payment of money or other valuable thing, or any receipt, acquittance, or paper or papers operating as a discharge for the payment of money or other things, belonging to another, with intent to steal the same, he shall be guilty of simple larceny, and be punished by imprisonment and labor in the penitentiary for not less than one year, nor more than four years, when the property is of the value of $50 or more; and when the property stolen is under the value of $50, he shall be guilty of a misdemeanor.'' From the above quoted Code Section 26-2616 you can see that the violation of this section makes the violator guilty of simple larceny. It also makes the crime a felony when the property is in the value of $50 or more and when the property so stolen is less than $50 the violator would be guilty of a misdemeanor. Section 26-2617 of the Annotated Code of Georgia of 1933, deals with the stealing of election returns and makes such an act a misdemeanor. Section 26-2618 of the Annotated Code of Georgia of 1933, reads as follows: "Theft or larceny may be committed of anything which, in the language of the law, savors of the realty, or of any fixture; and the punishment shall be as for a misdemeanor." Section 26-2624 of the Annotated Code of Georgia of 1933, reads as follows:
"Plundering or stealing any article of value from a vessel in distress, or from a wreck or any other vessel, boat, or water craft, within the jurisdictional limits of this' State, is simple larceny, and shall be punished as a misdemeanor when any article so taken is under $50 in value; and when of more than the value of $50, by imprisonment and labor in the penitentiary for not less than one year nor more than five years.''
From the above quoted Code Section 26-2624 you can see that the violation of this Section may be either a felony or a misdemeanor.
I again call your attention to Section 26-2625 of the Annotated Code of Georgia of 1933, which reads as follows:
"All simple larcenies of the personal goods of another, not mentioned or partially designated in this Code, shall be punished as misdemeanors.''
In order to answer your question as to whether such crime is a misdemeanor or a felony it would be necessary to know just what larceny with which the person is charged.

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CRIMINAL PROCEDUR~osts (Unofficial) The costs in a criminal case are not collectible until after conviction on final trial.
July 30, 1951
Honorable J. Parks Harvey Replying to your letter of July 18, 1951, I am pleased to give you the
following authorities for your information and assistance in solving the problem of collecting costs in criminal cases.
Section 27-2801 of the 1933 Annotated Code of Georgia provides in part: "The costs of a prosecution, except the fees of his own witnesses, shall not be demanded of a defendant until after conviction on final trial . . ." The above Section means that the costs allowed an officer cannot be collected from a defendant until after his conviction on final trial. 'The court of inquiry will not be the final trial. Section 27-2805 of the 1933 Annotated Code of Georgia provides: "The prosecutor's name shall be indorsed on every indictment, and he shall be compelled to pay all costs and jail fees upon the acquittal or discharge of the person accused: "1. When the grand jury, by their foreman, on returning 'no bill', express it as their opinion that the prosecution was unfounded or malicious. "2. When a jury on the trial of the prosecution finds it to be malicious. "3. When the prosecution is abandoned before trial. When it is thus abandoned, the officer who issued the warrant shall enter a judgment against the prosecutor for all the costs, and enforce it by an execution in the name of the State, or by an attachment for contempt." Section 27-2906 of the 1933 Annotated Code of Georgia provides: "Any officer of the county court, having jurisdiction for the trial of misdemeanors in any county, or any notary public or justice of the peace, having a like claim for costs, or before whom a preliminary investigation shall be had, and also constables having a like claim for costs, shall present the same to the judge of said court in the form prescribed in the preceding section; and when an order is approved and entered on the minutes of said county court, if any, and if not, on a book prepared and kept by said county court, notary public, or justice of the peace, for that purpose, the same shall be a warrant on the county treasurer, to be paid out of any fines and forfeitures arising :from proceedings in said county court in accordance with the laws providing for the distribution of fines and forfeitures in the superior court." Section 27-2913 of the 1933 Annotated Code of Georgia provides: "Costs due justices of the peace and constables, in cases"1. When parties have been acquitted; "2. When they are unable to pay costs; "3. In counties in which there are no county courts, when persons have been bound over by the justice, or have been committed to jail in default of bail and the grand jury make a return of 'no bill'; or when, after an investigation, the party has been discharged by the justice; "4. In counties where there are county courts, in felony cases; and in misdemeanor cases in which an indictment has been demanded;
Shall be paid out of fines and forfeitures upon the order of the judge of the superior court, and are of equal dignity with the accounts of the officers of the superior court, and entitled to participate pro rata upon a distribution of any funds arising from fines and forfeitures."
Section 27-2928 of the 1933 Annotated Code of Georgia 1949 Temporary Supplement, provides:

266
"All justices of the peace and notaries public who are ex-officio justices of the peace, and constables of the State of Georgia, shall be compensated in criminal cases in the way and manner hereinafter prescribed."
Section 27-2929 Of the 1933 Annotated Code of Georgia, 1949 Temporary Supplement, provides:
"Said officers above named shall present their bill of costs to the clerk and judge of the superior court of their county at each term of said superior court, which bill shall be itemized, and with the affidavit of such officer who is seeking payment of his costs, that said itemized statement is correct and that none of said bill of costs has heretofore been paid by the county or the prosecutors or defendants or any other parties. It shall then be the duty of said clerk and judge of the superior court to examine said itemized statement, and certify as to whether they approve or disapprove such 'bill of costs, and if disapproved in part, that part which does not have tM approval of both the judge and the clerk shall not be paid by the county, and if disapproved in whole, none of said bill shall be paid. However, if said bill is approv2d in part, the part approved by both the judge and the clerk, shall be paid, as hereinafter provided."
Section 27-2930 of the 1933 Annotated Code of Georgia, 1949 Temporary Supplement, provides:
"The approval of said bill of costs in whole or in part shall operate as an order to have same entered on the minutes of the superior court, and shall operate further as a warrant on the county treasurer, to be by said county treasurer or other proper county officer or officers in charge of the fiscal affairs of the county in which said justices hold office, paid out of the general treasury, to the extent in which said bill is approved."
Section 27-2931 of the 1933 Annotated Code of Georgia, 1949 Temporary Supplement, provides:
"In the event that either the judge or clerk of the superior court should fail or refuse to certify as to whether they approve or disapprove of said bill of costs after presentation to them, then it shall be the duty of the ordinary to examine said bill and to pass upon its correctness, and if found to be correct in whole or in part by said ordinary, then the part so found to be correct shall be so certified by the ordinary and shall operate as a warrant on the county treasurer or other proper county official or officials in charge of the fiscal affairs of said county, and shall be by such official or officials paid to the extent in which it is found to be correct out of the general treasury of the county."
Section 27-2932 of the 1933 Annotated Code of Georgia, 1949 Temporary Supplement, provides:
"The provisions of this law (Sections 27-2928 to 27-2932) shall only apply to criminal cases, wherein, a warrant or warrants have been issued and have resulted in an accusation or an indictment and a conviction has been had on same."
Your particular attention is called to the provisions of the above-cited sections 27-2928 through 27-2932 as those sections provide that the costs to be paid from the county treasury shall only be in those instances in which the accused has been bound over to the Grand Jury and resulted in an execution or an indictment and accusation and a conviction has been had on same. All other costs due a justice of the peace under the other authorities cited herein in criminal cases are payable from the fine and forfeiture fund of the county.
Section 27-9902 of the 1933 Annotated Code of Georgia provides: "Any arresting officer who shall collect or receive any costs or other charges of a prosecutor or defendant in a case made on a State's warrant, or of anyone

267
acting in the interest of either of them, before the warrant is returned to the court to which it is made returnable, shall be guilty of a misdemeanor: Provided, that nothing in this or the preceding section shall be construed as prohibiting arresting officers from receiving from prosecutors sums of money sufficient to defray their expenses in going beyond the limits of the jurisdiction of such arresting officers to search for or to make the arrests of the offender."
Section 27-421 of the 1933 Annotated Code of Georgia provides: "A justice of the peace who commits a prisoner to jail, or binds him for his appearance at the superior or city court to answer to a criminal offense, shall make out a bill of the costs which may have accrued in the court below, and send it up with the other papers in the case; and the clerk of said court shall tax said costs with the other costs which may have accrued in the case, in the superior or city court, as the case may be; and the sheriff of said county shall collect the costs due the justice and constable, with the other costs in the case, and pay them over to the officers entitled thereto. If the accused shall be discharged for want of sufficient cause of commitment, the justice may, in his discretion, direct the costs to be paid by the prosecutor."
CRIMINAL PROCEDURE-Sentence (Unofficial) There is no provision of the law specifying a time within which disposition must be made of a person sentenced to prison. April 12, 1951
Mr. J. L. McBath This will acknowledge receipt of your letter of April 10, 1951, the last two
paragraphs of which reads as follows: "It is my understanding that one who is sentenced must be disposed of in
a prescribed manner, such as within ten days after the sentence is pronounced, etc.
"Will you be so kind as to quote me the law on this matter and the time limit of retention."
Code Section 27-3505 of the Annotated Code of Georgia of 1933, provides as follows:
"It shall be the duty of the several judges, in the imposition of sentence for violation of the penal laws, to specify that the term of service under such sentence shall be computed as from the date of sentence, provided the defendant is confined in jail or otherwi~e incarcerated, and has no appeal or motion for new trial pending, except in such cases as may be appealed to the State Court of Appeals or the Supreme Court for reversal of the conviction, in which event the sentence shall be computed from the date the remittitur 0f 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."
CRIMINAL PROCEDURE-Trials (Unofficial) 1. A person can be tried and convicted on two separate felony indictments at one trial. 2. A defendant can waive his rights and 'be tried by a ten man jury.
May 2, 1951 Honorable Charles Burgamy
This will acknowledge receipt of your letter of April 25, 1951, in which you ask my advice as follows:

268
"Please advise me whether or not a person can be tried and convicted on two separate indictments charging separate crimes, the same being felonies, at one trial.
"I would also like for you to advise me whether or not it is legal to try a person for a felony with a ten man jury."
In answer to your first question, it is my opinion that if the Grand Jury has indicted a person under two indictments, each indictment charging a felony, and the case comes up for trial, the defendant could agree with the State's Attorney that both indictments be tried at one time and before the same jury.
In answer to your second question, it is my opinion that a person charged with a felony under an indictment of the Grand Jury, upon the trial of the case, the defendant would be entitled to be tried by twelve qualified jurors. However, it is my opinion that the defendant could waive this right and be tried before the judge or with a less number of jurors.

CRIMINAL PROCEDURE-Warrants (Unofficial) Warrants of arrest ma'y be issued by any judicial officer and served by any sheriff, deputy sheriff, coroner, constable or marshal in the State.

March 15, 1951

Honorable R. H. Benedict

This is in further reply to your letter of March 8, 1951, in which you make the following request:

"Will you please outline for me the correct method. of going about to get a

warrant issued and prosecuted on a criminal complaint in your state."

Code Section 27-102 of the Annotated Code of Georgia of 1933, provides as

to who may issue warrants for arrest, and reads as follows:

"Any judge of a superior, city, or county court, or justice of the peace, or

any municipal officer clothed by law with the powers of a justice of the peace, may issue his warrant for the arrest of an offender against the penal laws,

based either on his own knowledge or the information of others given to him

under oath." Code Section 27-103 of the Annotated Code of Georgia of 1933, provides as

follows: "An affidavit made, or warrant issued, for the arrest of an officer against

the penal laws shall state, as nearly as practical, the following facts, to wit:

The offense, the county in which the same was committed, and the time when committed; and when the offense charged is larceny, the ownership of the prop-

erty alleged to have been stolen, or the person from whose possession it was

taken, shall, as far as practicable, be stated in the affidavit and warrant."

When a warrant is issued under the above provisions of law, the warrant

is directed to any sheriff, deputy sheriff, coroner, constable, or marshal of Georgia, and Code Section 27-105 of the Annotated Code of Georgia, 1933, read~:~

as follows: The following form may be used for a warrant, a substantial compliance

with which shall be deemed sufficient:

"Georgia,

County.

"To any sheriff, deputy sheriff, coroner, constable, or marshal of said State

-Greetings: "A B. makes oath before me that on the - - - day of---, in the year

19--, in the county aforesaid, C. D. did commit the offense of - - - - - - - .

You are therefore commanded to arrest the body of the said C. D., and bring

him before me, or some other judicial officer of this State, to be dealt with

269
as the law directs. You will also levy on a sufficiency of the property of said C. D. to pay the costs in the event of his final conviction. Herein fail not.
---------,. J. P." Code Section 27-210 of the Annotated Code of Georgia of 19~3, provides as follows: "Every officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the person authorized to examine, commit, or receive bail." Code Section 27-208 of the Annotated Code of Georgia of 1933, provides as follows: "The arresting officer shall carry the prisoner before the most convenient and accessible judicial officer authorized to hear the cause, unless the prisoner shall desire otherwise; in which case, if there 'be no suspicion of improper motive, the arresting officer shall carry him before some other judicial officer. In no case has a prisoner the right to select the justice before whom he shall be tried." Code Section 27-209 of the Annotated Code of Georgia of 19S3, provides as follows: "An arresting officer may arrest any person charged with crime, under a warrant issued by a judicial officer, in any county, without regard to the residence of said arresting officer; and it is his duty to carry the accused, with the warrant under which he was arrested, to the county in which the offense is alleged to have been committed, for examination before any judicial officer of that county. "The county where the alleged offense is committed shall pay the expenses of the arresting officer in carrying the prisoner to the county; &.nd the officer may hold or imprison the defendant long enough to enable him to get ready to carry the prisoner off." Code Section 27-401 of the Annotated Code of Georgia of 1933, provides as follows: "Any judge of the superior or county court, or justice of the peace, or city or town officer, who may be ex-officio justice of the peace, may hold a court of inquiry to examine into an accusation against a person legally arrested and brought before him. The time and place of such inquiry shall be determined by him." Code Section 27-405 of the Annotated Code of Georgia of 1933, provides as follows: "The court shall hear all legal evidence submitted by either party, and shall always permit the defendant to make his own statement of the transaction (not under oath) if he desires to do so. The weight to be given to such statement shall be entirely in the discretion and sound judgment of the court. Whenever such statement is made, it shall be the duty of the court to reduce it to writing, and return it with the other papers to the proper court in the event of commitment."
DEEDS-Land Processioners (Unofficial) 1. Land processioners do not have to be sworn. 2. The fee for the Ordinary for filing the return of the processioners is found in Section 24-1716.
March 7, 1951 Honorable Vickers Neugent
In further reply to your letter of February 28, 1951, in which you ask the following questions: Are land processioners required to be sworn? And, what

270
fee is the ordinary entitled to receive for filing the return of the processioners? I am pleased to advise that it is my opinion that land processioners are
not required to be sworn. Section 85-1604 of the Code of Georgia of 1933, Annotated provides that the ordinary shall appoint three persons in every militia district to be processioners for that militia district. I can not find a provision of law whereby processioners of land are required to take an oath and in the absence of specific statute requiring such oath it must be concluded that they are not required to be sworn.
Chapter 85-16 of the Code of Georgia of 1933, Annotated, ccncerning processioners enumerates the various duties of the ordinary and requires that he record the actions of the processioners, however, this section fails to set the costs of the ordinary for performing such acts. I believe that Section 24-1716 of the Code of Georgia of 1933, Annotated, Supplement, (miscellaneous section) provides for the remuneration of the ordinary and this section reads in part as follows:
"Filing and docketing any application, petition, or case where no fees are prescribed-$3.00," "Every case litigated before the ordinary where no fees are prescribed-;--$4.00," and etc.
DIVORCE AND ALIMONY-Residence (Unofficial) There is a six months residence requirement for a divorce except for servicemen stationed in Georgia, in which case the residence requirement is one year.
July 6, 1951
Honorable Benjamin Zeesman I am in receipt of your letter of July 2, in which you request my unofficial
opinion as to the residence requirement for obtaining a divorce in Georgia. Section. 30-107 of the Code of Georgia of 1933 states:
"No court shall grant a divorce of any character to any person who has not been a bona fide resident of the State twelve months before the filing of the application for divorce."
This Section was amended by an Act of 1939 (Georgia Laws, 1939, page 203-204), which added the following proviso:
"Provided that any person who has been a resident of any United States Army Post or Military Reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States Army Post or Military Reservation."
This proviso has since been written into the 1945 Constitution of Georgia, Section 2-4901. This Section was further amended in 1950 (Georgia Laws 1950, p. 429-430) so as to provide that the words "twelve months" should be stricken therefrom and the words "six months" inserted in lieu thereof. This amendment did not strike the words "twelve months" wherever they appeared, as you indicated in your letter, but only struck the words "twelve months" and substituted the words "six months." This reasoning is further confirmed by the fact that the amendment has been made and such wording 1s as follows:
"No court shall grant a divorce of any character to any person who has not been a bona fide resident of the State six months before the filing of the application for divorce: Provided that any person who has been a resident of any United States Army Post or Military Reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States Army Post or Military Reservation."

271
It is my unofficial opm10n that the Legislature in passing such an amendment had the intent to reduce the residence requirement to six months except for persons residing on Military Reservations.
DIVORCE AND ALIMONY-Support of Minor Child (Unofficial) The husband is liable for the maintenance and support of his minor child regardless of divorce and alimony.
February 23, 1951 Captain John J. McCarthy
This is in further reply to your letter of February 15, in which you inquire as to the liability of a person for the maintenance and support of his infant child after he has procured a divorce in Chatham County Superior Court.
Code Section 74-9902 of the Pocket Supplement of the Annotated Code of Georgia, 1933, reads as follows:
"If any father or mother shall wilfully and voluntarily abandon his or her child, leaving it in a dependent condition he or she, as the case may be, shall be guilty of a misdemeanor. The wife and husband shall be competent witnesses, in such case to testify for or against the other. A child thus wbandoned by the father or mother shall be considered to be in a dependent condition when the father and mother charged with the offense does not furnish sufficient food and clothing for the needs of the child. The offense of abandonment shall be and is hereby declared to be a continuing offense. Former acquittal or conviction of said offense shall not be a bar to further prosecution therefor under this section; if it shall be made to appear that said child was in a dependent condition as defined herein for a period of 30 days prior to the commencement of prosecution. If this section or any portion hereof shall be dedared invalid for any reason, the remainder thereof and the application of such section or portion thereof to other persons or circumstances shall not be affected."
The husband is held liable for the maintenance and support of his minor child regardless of whether or not there is any grant of alimony in the decree of the court granting the divorce.
EDUCATION-Ap,peal There must be a decision by a county board of education before an appeal can be maintained before the State Board of Education.
July 3, 1951
Honorable M. D. Collins State Superintendent of Schools
OFFICIAL OPINION QUESTION:
Can the State Board of Education hear an appeal from a decision of a county school superintendent if there has been no decision by the county board of education? ANSWER:
In the case of Honey v. County Board of Education of Telfair County, 203 Ga. 152, the SupremE Court of Georgia held that there must be a decision by a county board of education before an appeal can 'be maintained before the State Board of Education.
Section 32-910 of the Code of Georgia provides that an appeal to the State Board of Education must (1) be in writing, (2) set forth the questions in dis-

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pute, (3) contain the decision of the county board, (4) contain the testimony as agreed by parties or as reported by the county superintendent, and (5) be filed with the county superintendent within ten days from decision of county board.
If a petition does not contain a decision by a county board of education, it is my view that the State Board of Education does not have jurisdiction to entertain the petition as an appeal.
I might further add that if the petitioner is unable to obtain a hearing before the county board, he has a proper legal remedy to require the county board to perform a duty required by law, to-wit, writ of mandamus.

EDUCATION-County Board of Education The County Board of Education may, by regulations, provide that no school bus transport pupils to any attendance area other than that to which said school bus has been assigned.

Hon. M. D. Collins State Superintendent of Schools

February 14, 1951

OFFICIAL OPINION QUESTION:
Does the county board of education have the right to forbid children who have been assigned to one attendance area by the county board of education from riding the school bus to some other attendance area? LAW:
Article 7, Section 5, Paragraph 1 of the 1945 Constitution of Georgia provides:
"Each county, exclusive of any independent school system now in existence in the county, shall compose one school district and shall be confined to the control and management of the county board of education."
In the case of Keever et al, Trustees vs. Board of Education, 188 Ga. 299 and in the case of Downer et al, Trustees vs. Stevens, Superintendent, et al, 194 Ga. 598, the Supreme Court of Georgia held:

"Management of public schools of a county is confined to county boards of education."
Section 32-910 of the 1933 Annotated Code of Georgia provides:

"The county board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary; and when they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal to the State Board of Education, and said appeal shall be made through the county superintendent of schools in writing and shall distinctly set forth the question in dispute, the decision of the county board and testimony as agreed upon by the parties to the controversy, or if they fail to agree, upon the testimony as reported by the county superintendent of schools: Provided, that this section shall not apply to any public school system established prior to the adoption of the Constitution of 1877."

Section 32-909 of the 1933 Annotated Code of Georgia provides:

"The county boards of education shall have the power to . . . make all arrangements necessary to the efficient operation of the schools."

Section 32-912 of the 1933 Annotated Code of Georgia provides in part:

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"The county superintendents of schools of the county boa1:d of education shall make rules to govern the respective schools of their counties." OPINION:
Under the general regulatory powers granted county boards of education under the above-cited authorities, it is my opinion that a "county board of education, when it deems it to the best interest and for the most efficient operation of the schools of the county, may by regulations duly adopted provide that no school bus under the jurisdiction of the county board of education shall transport pupils to any attendance area other than areas to which said school bus has been assigned by the county board of education.
Any person dissatisfied with the regulations or any person affected by any regulations of the county board of education would have the right of appeal to the State Board of Education, provided such appeal is filed within the time provided by law.
EDUCATION-County Boards of Education (Unofficial) Vacancies on the board are filled by a secret ballot vote of the board and such member shall hold office until the convening of the next Grand Jury, at which time the same or a new member shall be appointed for the unexpired term.
June 29, 1951 Honorable H. B. Allen
In reply to your letter of June 16, 1951, I am pleased to give you the following provisions of the Constitution of Georgia relative to the filling of a vacancy on a county board of education:
Article VIII, Section V, Paragraph I, of the 1945 Constitution of Georgia, codified as Section 2-6801 provides in part:
"In case of a vacancy on said Board by death, resignation vf a member, or from any other cause other than the expiration of such member's term of office, the Board shall by secret ballot elect his successor, who shall hold office unti lthe next Grand Jury convenes at which time said Grand Jury shall appoint the successor member of the Board for the unexpired term."
EDUCATION-County Boards of Education (Unofficial) The County Board of Education has authority in the management and control of its schools to prohibit a child from riding a county school bus from one school district to another.
October 25, 1951 Mr. H. B. Ingram
I am pleased to acknowledge your letter of October 15, 1951, in which you ask whether or not a County Board of Education or a local Board of Trustees has authority to keep a child from riding a county school bus from one school district to another when said bus passes his door and whether or not such refusal is legal.
The Supreme Court of Georgia in the case of Pass, et al v. Pickens, et al, 204 Ga. p. 629, has passed upon this question. The facts contained in the opinion are identical with the facts as outlined in your letter.
In this case the Court stated: "Each County of the State, by the Constitution of Georgia 1:nd statute, is made a school district, and the management and control of the schools of the

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County is confided in the county board of education. (Code (Ann.), 2-6801, 32-901.''
Therefore, the County Board of Education has complete authority in the management and control of its schools.
The Court further said: "The right to determine what is best for the school pupils at the Vance Cross Roads School District is vested in the Board of Education of Gwinett County." and " 'It can not be said that the public schools of the State are maintained for the purpose of enhancing property values or satisfying the wishes of adults, other than as they may be incidental to that sole objective, which is the education and best interest of the school children themselves.' " and
"The legislature of this State realized that the functioning and accomplishments of the county boards of education would necessitate the exercise of wide powers of discretion, and to this end such discretion has by law been vested in the county boards of education; and unless it is made clearly to appear that they are acting in violation of law or grossly abusing their discretion, their administration of the schools of the counties will not be enjoined by the courts."
Therefore, in view of the above decision by our Supreme Court, it must be concluded that the County Board of Education can determine where a pupil may attend school and can deny such pupil, in their discretion, the right to attend a school of his choice. Where, however, it can be shown that the County Board of Education was abusing the discretion vested in it, then the aggrieved party could take proper action as provided by law.
EDUCATION-County Boards of Education (Unofficial) 1. It is legal for a member of the county board of education to serve on the 'Grand Jury. 2. Members of the county boards of education must tender their resignation to the State Superintendent of Schools. 3. A coroner is ineligible to serve as a member of the county board of education.
November 5, 1951
Mrs. Lilla A. Trammell I am in receipt of your letter of October 30, 1951 in whicn you ask the
following questions: 1. Should a member of the county board of education serve on the Grand
Jury? 2. Is it legal for a member of the county board of education to tender his
resignation to the Grand Jury? 3. May a coroner elected by the people of a county serve on the county
board of education? In answer to question one, it is my unofficial view that a member of the
County Board of Education is eligible to serve as a member of <t County Grand Jury, since a member of a County Grand Jury is not a "County Officer," within the usual definition as officers elected by the qualified voters and who hold office for fixed terms, and who can only be removed on conviction for malpractice.
In answer to question two, it is my unofficial view that a member of the County Board of Education should tender his resignation as a member, where he desires to resign from the Board, to the State Superintendent of schools as

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provided for in Section 32-906 of the 1933 Annotated Code of Georgia which provides:
"When any member of a Board, or a county superintendent of schools resigns, his resignation shall be tendered in writing to the State Superintendent of Schools."
I might add, however, that I know of no prohibition against a copy of the resignation which is sent to the State Superintendent of schools being sent to the Grand Jury as a matter of information.
In answer to your question three, it is my unofficial view that a coroner is a "County Officer," and that a member of the County Board of Education is a "County Officer," and that Section 89-103 Of the Code of Georgia prohibits a person to hold at one time more than one county office, except by special enactment of the legislature. Section 89-103 provides 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 ..."
EDUCATION-Funds (Unofficial) School funds can not be used to pay dues of board members or school superintendents in a private organization.
April 18, 1951 Honorable J. H. Woodall
This is in response to your letter of March 30, 1951 relative to authority of the County Board of Education to use common school funds, allotted by the State for school 'purposes, to pay dues of board ~members, local trustees and school superintendents in a private organization or association.
Taxes levied and collected for common school purposes cannot be used for the purpose of paying for salaries, office space, stationary, stamps and general supplies of a private organization or association or the officers' expenses thereof in the performance of the duties of such organization.

EDUCATION-Liabilities For Injury to Pupil 1. A municipality, school district or board of education is not liable for injuries sustained by a pupil on a public school campus. 2. A local school hoard is not liable for injuries received by pupils who are hurt while engaged in athletic contests.

Honorable M. D. Collins State Superintendent of Schools

April 9, 1951

OFFICIAL OPINION QUESTION:
1. Where does the responsibility lie with reference to medical expenses rendered to pupils who are hurt while on a public school campus'!
2. Is a local Board of Education liable for injuries received by pupils who are hurt while engaged in athletic contests?
ANSWER: It is a well settled principle of law that no municipality is liable for the
acts of its servants or officers in the performance of governmental duties. It is also generally held that a municipality operating a public school is performing a governmental function.

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In the case of Nabell v. City of Atlanta, 33 Georgia App., 545, it is held: "The duty of educating citizenry is one that devolves upon the State of Georgia as a sovereign duty and in the performance of this duty the State is discharging a function of government. If the State performs this function through one of its municipalities, and delegates to the municipality such power as may be necessary for the education of the public, the municipal corporation likewise, in the discharge of such duty, is in the exercise of a ... governmental function." The Nabell case involved a suit for damages against the City of Atlanta by a student who attended a high school in Atlanta, in that he was injured by a rip-saw which he was required to use as part of the curriculum of a manualtraining course of the school. The court held that the suit was properly dismissed on general demurrer; that in the absence of an express statute that the City of Atlanta would not be liable for injuries sustained by the student, since the high school which the student attended was operated by the City for the use of the public and the education of the public, its operation was in virtue of the governmental powers of the municipality. A similar rule has been held by a majority of the states even where it has been proven that the school officials were negligent. For example, in the case of Hill v. Boston, 122 Mass. 344, it was held: "A child attending public school in a schoolhouse provided by a city, under the duty imposed upon it under general laws, cannot maintain an action against the City for injury suffered by reason of the unsafe condition of a staircase in the school over which he is passing."
Therefore, since there is no express statute in Georgia which abrogates the common law rule of non-liability, a municipality, school district, or board of education is not liable for injuries sustained by a pupil on a public school campus.
I find the second inquiry under discussion a very interesting one, and as far as my research has disclosed, I do not believe the point has been decided or passed upon in the State of Georgia.
Since the physical education and training of school children of elementary and high school grades, including physical and gymnastic exercises, athletics, physical games, sports, and the like, are generally considered a governmental function, inasmuch as the physical development of children is as important for good citizenship as their mental development, it is the general rule that school districts, school boards and other agencies or authorities in charge of public schools enjoy immunity from tort liability for personal injury or death sustained by pupils, in the absence of legislative enactment to the contrary.
In the case of Mokovich v. Independent School District, 177 Minn. 446, the Supreme Court of Minnesota held that school districts or school boards are not liable in tort for personal injuries with respect to injuries sustained by a player participating in a football game between school teams.
Of course, where school districts or school boards are liable by virtue of statutory enactments, ordinarily they are liable to the same extent as private persons for negligence in connection with matters pertaining to physical education or training, athletics, or the like, resulting in injuries to pupils.
But in the State of Georgia there is no such statutory enactment rendering school districts or school boards liable in tort for injuries attributable to the negligence of school officials. Of course, the individual official might be liable for his own negligence. In this connection your attention is invited to the case of Roberts v. Baker, 57 Georgia Appl. 733, wherein our Court of Appeals held, relative to a suit for damages for injuries to a pupil on a school bus,

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that the transportation by the authorities of a local school district of children on a school bus to and from school was a governmental function, and thus the school authorities are not liable in their official capacity or as individuals in tort, but the driver of a school bus is responsible in tort for his negligent acts in the operation of such a bus.
The State of Georgia, as well as school districts, school boards, and other state educational agencies, are not insurors of the safety of tho;;e participating in physical or athletic activities. It is a matter of common knowledge that children participating in athletic games injure themselves and their opponents, and no amount of precaution or supervision on the part of school officials will avoid such injuries. The injuries are generally of an inconsequential nature, and are incurred without the fault on the part of anyone, hut the same reasoning would hold true if the particular injury was of a more serious nature.
However, it has been held liable for the creation or maintenance of a nuisance resulting in personal injury to a pupil. See the case of Bush v. Nowalk, 122 Conn., 426. The New York rule is even more stringent, where it has been held that boards of education are liable for their own negligence in failing to maintain a school gymnasium or similar equipment in a reasonably safe condition wherein injury incurred to pupils or other persons <>ccupying the status of invitees.
It is my opinion that in the State of Georgia school districts or school boards are immune from liability for injuries to players sustained in connection with the practice of school teams or contests between them.

EDUCATION-Property-Merger When there is a merger of an independent school system with a county school system, the county board of education succeeds to the title and the control of all of the school real property of the independent school system.

May 4, 1951

Honorable B. E. Thrasher, Jr. State Auditor

QUESTION:

OFFICIAL OPINION

Who holds the title and control of the school real property when there has been a merger of an independent school system with a county school system?

ANSWER: The Supreme Court of Georgia in the case of Board of Education of Fulton

County v. Board of Education of College Park, 147 Ga. 776 (3) held: "Where a municipality is authorized by the General Assembly to create a

public-Echool system coextensive with its corporate limits, a part or all of

which territory has theretofore been included within the system of public schools operated by the county, forming a portion of a school district, the municipality succeeds to the control of educational matters and to the title to the real estate held as public school property within its territory, holding such title, of course,

as a statutory trustee or public agent. The legislature, it is universally con-

ceded, has the power to provide for such division of the school property as may

be located within the new territory between the county school board and the municipal board of education as it may deem just and equitable."

"... As a matter of law, county boards of education and similar boards of municipalities hold title to real estate conveyed to them for school purposes

subject to any disposition that the General Assembly may make of it consti-

tutionally; and this is implied as a part of every conveyance to them of such

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real estate, even in the absence of any express intention of the parties. Hunter v. Pittsburgh, supra. The board of education of Fulton County held title to the real estate as trustees for the people of the State, who, through the General Assembly, had full power, at pleasure, to change its trustees; ..."
In view of the above decision of the Supreme Court of the State of Georgia, I am of the opinion that where there is a merger of an independent school system with a county school system, the county board of education succeeds to the title and control of all the school real property of the independent school system so merged.

EDUCATION-Public and Private Schools A "private school," as distinguished from a "public school," is one managed and supported by individuals or a private agency.

Honorable M. D. Collins State Superintendent of Schools

April 20, 1951

OFFICIAL OPINION QUESTION:
What is the criterion for determining whether a school is a private or public institution?

ANSWER: Schools are ordinarily divided, on the basis of their ownership and control
and the admission of pupils thereto, into two general classes:

1. Private schools, which are ordinarily owned and controlled by private persons or by eleemosynary corporations or associations, and to which admission is a matter of private contract.

2. Public schools, which are controlled and administered by the State, its agencies and subdivisions, and to which, broadly speaking, every person who fulfills the requirements prescribed by or under the authority of law is admissible as a matter of right.

A "private school," as distinguished from a "public school," is one managed and supported by individuals or a private agency.

The term "public school" denotes a school open and public to all in the locality which is subject to and under the control of the State, itE agencies or sub-divisions in which it is situated, and which is supported and maintained primarily from monies raised by general taxation.

Taking the above principles of law and applying them to a particular school, it would be "classified as follows:

L If such school is under the management and control of the County Board of Education of the county in which it is situated and is a part of the county school system and operated upon the same basis as other public schools of the county, then it would be properly classified as a public school.

2. If it is under the direction and control of an independent school system of a municipality and is a part of the independent school system, operated upon the same basis as other units of such system, then it would be classified as a public school.

3. If it is under the direction and control of private persons, or private or eleemosynary corporations or associations, or any governing board, committee or group thereof, prescribing the admissions thereto and the operation and control of its administration, then it would be a private school.

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EDUCATION-Spastic Children-Cerebral Palsy The 1951 Appropriations Act directs the State Board of Education to establish, as of July 1, 1951, educational facilities for spastic children and children afflicted with cerebral palsy.
April 18, 1951
Honorable M. D. Collins State Superintendent of Schools
OF'F'ICIAL OPINI!ON QUESTION:
What was the intent of the General. Assembly in passing the 1951 Appropriations Act relative to educational facilities for education of spastic children and children afflicted with cerebral palsy? ANSWER:
Section 8 of the General Appropriations Act (Georgia Laws 1951, page 420) appropriates for educational purposes $55,150,000.00. To this specific appropriation, in addition to other provisions, the General Assembly deetned it advisable to attach thereto the following provisos:
"Provided, further, that the State Board of Education is hereby directed, effective July 1, 1951, to establish educational facilities for the education to spastic children and children afflicted with cerebral palsy in cooperation with local boards of education and the Board is also directed to make the necessary allotment of funds provided in this Section for the costs incident thereto and provided further, that funds for this purpose shall only be expended through the local boards of education and no expenditure shall be authorized by the board for cost of operating the Department of Education or any division thereof for costs incident to carrying out the purposes of this paragraph other than for distribution to the local boards of education.
"Provided further that a sum not to exceed $795,000 of the funds provided in this section shall be expended only for the purpose of providing a separate and central institution at which place proper medical treatment and suitable educational training shall be provided for the spastic children of this state and for children afflicted with cerebral palsy.
"Provided further that before such institution is permanently established the Governor shall name a committee consisting of a physician or surgeon versed in the treatment of these children, as well as an educator familiar with the training necessary for such children, to investigate the practicality and the need of such an institution and to report their findings and recommendations back to the Governor and the 1952 Session of the General Assembly. On the appointment of this committee by the Governor, the Governor is authorized to fix the compensation of the members of said committee and to provide for the payment of their expenses incurred during the investigation subject to the approval of the Budget Commission, said compensations and expenses shall he paid from the amount hereby appropriated, and in no event to exceed $5,000.00."
The first proviso directs the State Board of Education to establish on July 1, 1951, educational facilities for the education of spastic children and children afflicted with cerebral palsy in cooperation with local boards of Education. This means that the State Board of Education shall inaugurate within the existing school administration framework such educational facilities. The J:roviso further directs the State Board of Education to make the necessary allotment of funds from the above total appropriation for the cost incident to the establishment of such educational facilities. It further directs that the funds for this purpose shall only be expended by the local county boards of education. It also directs that the State Board of Education shall not use any of such funds for the cost

280
of operating the State Department of Education or any division thereof for carrying out the purposes of this proviso except the amount that is necessary for expenses of the State Department of Education in the distribution of such funds to the local county boards of education.
The General Assembly in enacting the second proviso above cited simply meant to authorize the expenditure of a sum not to exceed $795,000.00 for the purpose of providing a separate and central institution at which proper medical treatment and suitable educational training would be provided for the spastic children of the State and for children afflicted with cerebral palsy. It is my view that the General Assembly intended for the State Department of Education to establish a separate institution from the presently existing school facilities in some central locality of the State for the purposes enumerated. This is a different project and undertaking from that provided for in the first proviso above cited and to be operated independently of the county educational systems by the State Department of Education.
The third proviso directs that before the institution provided for in the second proviso is established, the Governor shall name a committee as set forth in the third proviso to investigate the practicality and the need for such an institution and to report back their findings and recommendations to the Governor and the 1952 Session of the General Assembly.
I reach the conclusion from a close analysis of the above cited provisos that it was the intent of the General Assembly to direct the State Board of Education to establish, as of July 1, 1951, educational facilities for spastic children and children afflicted with cerebral palsy, as stated in the first proviso, in order that these two classes of children could obtain the proper educational facilities and training while the committee authorized in the third proviso investigated the feasibility and practicality of the need of a separate and central institution for medical treatment and educational training.
I reach the further conclusion that the sum enumerated in the second proviso will not become available for providing a separate and central institution for the purposes enumerated therein until the committee mentioned in proviso 3 shall have reported its findings and recommendations to the Governor and the 1952 Session of the General Assembly.

EDUCATION-State Board of Education The State Board of Education cannot pay the school bus drivers the additional 4 cents per mile compensation after June 30, 1951.

June 28, 1951

Honorable Herman E. Talmadge

Governor of Georgia

OFFICIAL OPINION

FACTS: The 1949 General Appropriations Act contains the following provision: "Provided, that the State Board of Education shall establish the necessary
rules and regulations so that the necessary amount of the funas distri!buted to school systems for administrative purposes from the funds hereby appropriated shall be used specifically for additional compensation of bus drivers and said funds shaU be distributed monthly during a school term to the county school systems on the basis of four cents per mile for the total route miles traveled each month by school bus for school purposes as reported to the State Department of Education for the school year 1946-47. The State Board of Edu-

cation shall fix minimum salaries for bus drivers.

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"Provided, further each bus driver shall receive additional compensation above the amount of compensation in force and effect for the school year 19461947, on the basis of four cents per mile for the total route miles traveled each month driving a school bus, during a school term for school purposes, based on mileage reported as above stated.
"Provided, further that this authorization and direction shall remain in force and effect until the passage and approval of an Act of the General Assembly authorizing the State Board of Education to establish other rules and regulations governing the operation of school buses."
QUESTION: Does this provision remain in force and effect after the 1951 General Appro-
priations Act becomes effective on July 1, 1951?
ANSWER: Article VII, Section IX, Paragraph II of the 1945 Constitution of Georgia
provides: "Each General Appropriations Act, with such amendments as are adopted
from time to time, shall continue in force and effect 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 Federal Grants and other continuing appropriations and adjustments on appropriations sl1al! remain in force and effect until specifically and separately repealed by the General Assembly."
This provision of the Constitution is clear in providing that a duly adopted General Appropriations Act of the General Assembly shall continue in force and effect until repealed or another General Appropriations Act is adopted by the General Assembly.
The General Assembly at the 1951 session (Georgia Laws 1951, page 417) adopted a General Appropriations Act for the fiscal year beginning July 1, 1951 and ending June 30, 1952.
The 1951-52 Appropriations Act does not contain the proviso cited in your request relating to the four cents per mile additional compensation for school bus drivers.
The Minimum Foundation Program of Education Act (Georgia Laws 1949, pages 1406-1422), as amended, provides under Section 9 thereof a formula to be used by the State Board of Education to determine the amount of funds needed by a county school system to defray the expenses of pupil transportation. This section also provides that such funds granted by the State Board of Education to a local unit of administration for transportation shall, be spent only for transportation purposes.
Under Section 32-424 of the 1933 Annotated Code of Georgia, the State Board of Education is authorized to establish minimum salary schedules for school bus drivers.
Under the authorities cited, it is my opinion that the proviso contained in the 1949 General Appropriations Act, referred to in your request, continues in force and effect until June 30, 1951 at which time the 1951-52 General Appropriations Act becomes effective. 'The provision not being continued in the 19511952 General Appropriations Act, it would not have any force and effect after June 30, 1951, as such.
However, it is my further opinion that under the authorities cited herein, the State Board of Education, after June 30, 1951, will be authorized to use

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the powers and authority granted to them under Section 9 of the Minimum Foundation Program of Education Act in calculating the amount of funds needed by a county school system to defray the expenses of pupil transportation, and that under the authority granted under Section 32-424 of the Code, they have the power and authority to establish minimum salary schedules for school bus drivers.
The authority to be exercised by the State Board of Education, relative to Section 9 of the Minimum Program of Education Act, is contingent upon the provisions of Section 31 of said Act becoming effective under the conditions stated in said section.
EDUCATION-State Board of Education-Expenses The members of the Board of Education are entitled to per diem and travel expenses only when attending regular or called meetings at the State Capitol.
November 1, 1951 Honorable George P. Whitman, Jr. Chairman, State Board of Education
OF'FICIAL OPINION FACTS:
Some monies recently paid to the members of the State Board of Education for trips to the various institutions in this State, under the control of the State Board of Education, have been held in a recent audit prepared 'by the State Auditor as illegal. QUESTIONS:
1. Is the State Board of Education, sitting as a State Board of Education for Rehabilitation, entitled to per diem and travel expenses when it meets with the State Department workshop at its annual meeting in Savannah, or any other point at which it may meet when and where the total cost is paid for by the Federal Government out of Federal funds and at no expense to the State of Georgia?
2. Is the State Board of Education entitled to per diem and travel expenses when it meets at the Georgia Academy for the Blind or the Georgia School for the Deaf for the purpose of supervision and operation of these institutions?
3. Is the State Board of Education, sitting as a Vocational Board of Education, entitled to send committees to either of the trade schools or elsewhere in the State for the purpose of investigating and reporting back to the Board regarding the expenditure of Vocational funds? ANSWER:
Code Section 32-405, Georgia Annotated Code, Supplement, provides: "The members of the Board of Education ... shall meet at the State Capitol in the Department of Education, or at such place in the Capitol as may be designated by the Governor for that purpose." Section 32-406 of the Annotated Code of Georgia, Supplement, provides: "The Board shall meet quarterly in regular sessions and ~ts such time as they by regulation may provide, and may hold additional meetings at the call of the chairman." Section 32-407 of the Georgia Annotated Code, Supplement, provides: "The members of the Board shall receive the sum of seven dollars for each day of actual attendance at the meetings of the Board, and as actual cost of transportation to and from the place of meeting and their respective homes by the nearest practicable route the mileage allowed by law to State officers and

283

employees. Such per diem and mileage shall be paid by the State Department of Education.
In considering the interpretation of these Code Sections, the cardinal rule of interpretation, to-wit, that "Statutes must be construed to effectuate the legislative intent" must be followed. In trying to arrive at the true intention of the General Assembly in the passage of these statutes, it appears that the General Assembly desired and stated specifically that the State Board of Education must meet at the State Capitol in the Department of Education, or such place in the Capitol as may be designated by the Governor for that purpose. There can be no doubt, under the exact words of the statute that the State Board of Education is without authority to meet at any other place than designated in Code Section 32-405.
Also it has been repeatedly held that State funds cannot be paid by any official, department or agency except for purposes specifically provided for by law, and as outlined by statute, no matter how meritorious or morally right such expenditure might be. The statutes relating to public monies must be, and are, strictly construed.
Therefore, any monies which may have been paid to the members of the State Board of Education for per diem and travel expenses for meetings held elsewhere than the places designated in said Code Section 32-405 were illegally paid.
But in Georgia Laws, 1937, pp. 355, 368, it is stated: "The Board of Control of Elemosynary Institutions created under and by virtue of an Act approved August 28, 1931 (Acts 1931, pp. 7, 15) is hereby abolished. The activities, authority, and delegated duties which have heretofore been carried on by the Board of Control and defil!,ed in detail in Title 35 in its entirety in the 1933 Code of Georgia are hereby transferred and removed to the State Department of Public Welfare and all such functions and activities heretofore entrusted to such Board of Control of Eleemosynary Institutions shall hereafter be administered through the State Department as created in this Act." (Italics ours). The name of the "State Board of Public Welfare" was changed to the "State Board of Social Security" in Georgia Laws, 1943, page 202.

Georgia Laws, 1943, pages 230, 232 states:

"Effective July 1, 1943, the authority, powers, duties, supervision, control and management of the Georgia Academy for the Blind, as laid down in Chapter 35-7 of the 1933 Georgia Code, and the Georgia School for the Deaf, as laid down in Chapter 35-8 of the 1933 Georgia Code, be, and they are hereby taken from the State Board of Social Security and transferred to the State Board of Education."

You will notice from the above that the authority, duties, supervision, control and management of the State Board of Social Security relative to the Georgia Academy for the Blind and the Georgia School for the Deaf were transferred to the State Board of Education, but only such authority, powers, duties, supervision, control and management as were laid down in Chapter 35-7 and Chapter 35-8 of the 1933 Code of Georgia.

By referring to those two chapters, namely, 35-7 and 35-8 of the Code,

you will readily see that no provisions are set out therein for meetings of the

Board, for per diem or travel expenses. So that with reference to meetings,

per diem, and travel expenses, the State Board of Education gained no new or

additional authority, and is thus necessarily governed by Code Sections 32-405,

32-406, and 32-407, supra.



Had not the Act of the General Assembly, Georgia Laws, 1943, pages 230,

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232 (above quoted) specifically restricted the matter to Chapters 35-7 and 35-8 of the 1933 Code of Georgia, then a different conclusion would be reached, for the Board of Control of Eleemosynary Institutions had the statutory authority to make annual visits of inspection to each of the institutions under its control and to receive per diem and travel expenses therefor. (See Code Sections 35-107, 35-109, and 35-110 of the 1933 Code of Georgia).
Thus, since it is apparent that the State Board of Education has acquired the duties and authority of the Board of Control of Eleemosynary Institutions only to the extent as set out in Chapters 35-7 and 35-8 of the 1933 Code of Georgia, and since there is an absence of an express authorization of a discretion as to the place where the meetings of the State Board of Education can be held, it is my opinion in answer to your three questions that the members of the State Board of Education are not entitled to per diem and travel expenses and cannot be paid for such meetings as you have outlined in your letter.
Furthermore, the fact that the funds obtained for the rehabilitatiton and vocational programs are obtained from Federal sources does not alter the matter. For example, otherwise the same ruling would allow members of the State Highway Board to meet elsewhere than at the Highway Building, and that point has already been passed on and held by me as unauthorized, even though Federal funds are frequently the principal outlay of certain roads and highways.
In my printed opinions of 1948-1949, pp. 405-407, in answer to a question of whether the members of the State Highway Board could be paid for meetings held elsewhere than at the Highway Building, I held therein as follows:
"In view of the fact that the regular or called meeting can only be held at #2 Capitol Square and that previous rulings holding that expenses could not be paid for any other purpose than attending these meetings, I am constrained to the opinion that expenses for any trip to places other than the Highway offices could not be paid, and these only when such trips are to attend a regular or called meeting."
I am forced, therefore, to answer all three of your questions in the negative.

EDUCATION-State Department of Education 1. The person in question was legally separated from the .State Department of Education "with prejudice" as of October 2, 1952. 2. The question of whether certain facts warrant criminal prosecution is one which should be determined by the grand jury.

Honorable B. E. Thrasher, Jr. State Auditor Chairman, Board of Trustees State Employees' Retirement System

November 28, 1951

OFF'ICIAL OPINION FACTS:
The State Superintendent of Schools discharged Mr. J. R. Wommack, an employee of the State Department of Education, on July 27, 1951, on grounds of "Insubordination" and "without prejudice." Thereafter, Mr. Wommack filed two separate appeals from his dismissal, one to the State Merit System of Personnel Administration, and the other to the State Board of Education.
Subsequent to the filing of the appeal with the State Merit System, its Director requested of the State Law Department a ruling as to whether the State Personnel Board could entertain Mr. Wommack's appeal before he had

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exhausted his remedy of appeal to the State Board of Education. In answer to that request, I concluded that Mr. Wommack should first pursue his right of appeal with the State Board of Education before the State Personnel Board would be authorized to entertain his appeal to that Board.
On September 17, 1951 Mr. Wommack withdrew his appeal to the State Personnel Board and the State Board of Education and advised the State Superintendent of Schools that he had accepted his dismissal "without prejudice."
On September 19, 1951 the State Board of Education in Regular Session reviewed the dismissal by the State Superintendent of Schools nothwithstanding the fact that Mr. Wommack had withdrawn his appeal, and reinstated him with pay retroactive as of the date of his dismissal on July 27, 1951, and directed the State School Superintendent to carry out the reinstatement order as entered on the minutes of the Board.
Subsequent to the foregoing Acts by the Board, the State School Superintendent on October 2, 1951, discharged Mr. Wommack "with prejudice" on the grounds that he was guilty of illegal transactions regarding specifically enumerated expense accounts and gross misconduct.
Following this Act, Mr. Wommack filed application with the State Retirement System for retirement based on his 22 years of service and being discharged "without prejudice" as in the first instance.
As of this date, the records do not disclose any appeal to the State Personnel Board or the State Board of Education by Mr. Wommack from his dismissal "with prejudice" by the State Superintendent of Schools on October 2, 1951.
The record discloses that on November 7, 1951, the State Superintendent of Schools notified you, as Chairman of the Employees' Retirement Board, of his action in discharging Mr. Wommack on October 2, 1951, "with prejudice" and enumerated therein specific charges embracing:
1. Falsifying records, and 2. Approving false records in violation of Code Sections 89-9903 and 26-2801.
QUESTIONS: 1. Was Mr. J. R. Wommack legally separated from the State Department
of Education, and if so, on what date? 2. Are the charges made by Dr. M. D. Collins, State Superintendent of
Schools, sufficient to warrant criminal prosecution of Mr. J. R. Wommack?
ANSWER: In answer to question number one as to whether Mr. Wommack was legally
separated from the State Department of Education, and if so, m what date, I refer you to my opinion of .August 30, 1951, in which I specifically held that the State Superintendent of Schools has authority to employ and discharge employees of the State Department of Education, subject to review by the State Board of Education.
Applying the foregoing view to the facts in the subject case, the action of the State Board of Education in reinstating Mr. Wommack on September 19, 1951, was conclusive even though he attempted to withdraw his ~.ppeal. While the procedural action of the State Board of Education in disregarding the withdrawal of Mr. Wommack's appeal is unique and inconsistent with strict rules of judicial procedure, it is to be noted that this Board is, at the most, a mere quasi judicial body and is bound by no statutory rules of procedure in conducting hearings and reviews on the actions of the State Superintendent of Schools.
It is my further opinion that the action of the State School Superintendent on October 2, 1951 discharging Mr. Wommack "with prejudice," Vvas within his authority (see my opinion of August 30, 1951). In view of the fact that no appeal from this action has been filed by Mr. Wommack with the State Board

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of Education or the State Personnel Board, his status is that of having been legally discharged from the services of the State Board of Education "with prejudice" as of October 2, 1951, with the right of appeal to the State Board of Education. Should the action of discharge "with prejudice" by Dr. Collins be sustained by the State Board of Education, Mr. Wommack would be entitled to appeal to the .State Personnel Board within fifteen days from the date of such action.
In answer to the second question as to whether the charges made by Dr. M. D. Collins are sufficient to warrant criminal prosecution of Mr. J. R. Wommack, I call your attention to the record which discloses that Dr. Collins specifically charged Mr. Wommack with having falsified and approved false State records in violation of Code Sections 89-9903 and 26-2801. It has been brought to my attention that these charges have been denied by Mr. Wommack, consequently it would be highly improper for me, as Attorney General, to pass on the question of the sufficiency of evidence to justify criminal prosecution. However, it is my considered opinion that the charges in themselv(es are sufficient to warrant grand jury investigation.
In your letter you call to my attention a signed statement by one Mr. C. A. Sorrells, Assistant State Supervisor of Trade and Industrial Education, Veterans Division, dated September 25, 1951, which is designed to lend support to charges made by Dr. Collins and admits participation in said transactions. Under the circumstances I am constrained to say that the entire matter relating to these charges and counter-charges should be investigated by the grand jury, including the admissions by Mr. Sorrells, for the purpose of determining if the evidence is sufficient for criminal prosecution.
EDUCATION-Teachers Retirement System Voluntary payment by a member of the armed forces. The Teachers' Retirement Act does not provide :for a member who enters the armed forces paying, during such period of military service, the entire amount that would be due the Retirement Fund by both himself and the State and receive credit for such years of military service toward a disability retirement or a service retirement as a member of the Retirement System.
February 28, 1951
Honorable J. L. Yaden Executive Secretary-Treasurer Teachers' Retirement System of Georgia
OFFICIAL OPINION FACTS:
A member of the Teachers 'Retirement System enters the armed forces of the United States and during such period of service desires to contribute personally to the Retirement Fund during his service with the armed forces the total payment which would be due the fund had he served as a teacher. His voluntary contribution would include both the payment usually made from his salary by his employer which would presumably be 5% of his teaching salary at the time of entering the service, as well as the 6.83 o/o of his salary which is normally paid by the State as a matching fund.
PROBLEM: Can a member who enters the armed forces during his term of office in
the armed forces pay the entire amount personally which would ,be due to the Retirement System had he continued as a teacher, and, next, could such military

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service be computed as creditable service toward disability retirement after 15 years or service retirement after 35 years~ ANSWER:
Code Section 32-2903 of the Code of Georgia, which defines "Membership" in the Retirement System, provides in Paragraph (4) that the Board ofTrustees of the System may continue the membership of a member while in the armed forces of the United States, but that:
"No benefit under the Retirement System other than the payment of the contributions of such teacher with allowable interest credits shail become payable to him or on his account while he is not in service as a teacher and no contribution shall be made to this System by the State or other employer by reason of his service during any such time, except as herein otherwise provided."
While it cannot be said with absolute legal certainty that the foregoing would prevent the continued contributions of such a teacher, it is the considered opinion of this office that the intent and soundest legal interpretation is that the teacher can only withdraw the contributions which he had made before entering the armed forces with allowable interest credits thereol<, and not that he can continue to make contributions. It is absolutely clear, however, that no other benefit under the Retirement System can accrue to such a teacher, and certainly if he received years of creditable service toward retirement for the time spent in the armed forces he would be receiving other benefits under the Retirement System.
It is true that the law could be so amended that the time spent in the armed forces, if proper contributions were made to the Retirement System on an actuarially sound basis, could be counted as years of creditable service toward retirement, and while what the person in question offers to do in this case seems to be actuarially sound, it does not seem to be provided for in the Teachers' Retirement law as it now stands. If it were permitted, the possibility of abuse could readily be seen if, for example, a person taught for one year and became a member of the Retirement System, then entered the armed forces and remained in the military service for many years without ever teaching or intending to teach again, and possibly seeking to retire after 15 years as a member of the Teachers' Retirement System because of a disability or injury received in his military service. The effect of this would 'be, even though it were actuarially sound and the person concerned were paying the cost, that the T'eachers' Retirement System was not really a system for retiring teachers in the service of the State, but merely that the Retirement System was acting as an insurer or depository of an individual who was rendering it no real service and with whom it had no real concern.
Further examining the Teachers' Retirement Act, Section 32-2901 of the Georgia Code defines the word "Service" as service rendered as a teacher and paid for by the State or an agency of and within the State, and a "teacher" is defined as one who spends at least one-half his time in the public schools as a classroom teacher or generally serves as an employee of the school system. "Membership service" is defined as service rendered as a teacher while a member .of the Retirement System for which credit is allowed, and credit at retirement on which the retirement allowance of a member shall be based shall consist of membership service since he last 'became a member plus service certified on his prior service certificate.
While here again it is not absolutely clear, the soundest view seems to be that wnile the Board may continue the membership or keep the membership status of a member while in the armed forces of the United States, that he canno!; receive credit for service as a teacher to count toward his years for

288
retirement, and it follows, of course, that there would be no sound reason for placing the Retirement System in a position of accepting and handling his total Voluntary contributions to the System while in the armed services if he is not receiving creditable years of teacher service during the time of his military service.
It is pointed out, however, that Paragraph (c) of Section 32-2921 provides, in part, that:
"Any member may, subject to the approval of the Board and such conditions as the Board may prescribe, deposit therein by a single payment or by an increased rate of contribution an amount computed to be sufficient to purchase an additional annuity which, together with his prospective retirement allowance, will provide for him a total retirement allowance of not more than one-half of his average final compensation at retirement, but not exceeding age 65. Such additional amounts so deposited shall become a part of his accumulated contributions: Provided that upon retirement they shall be treated as excess contr~butions returnable to the member as an annuity of equivalent actuarial value and shall not be considered in computing the pension."
The foregoing seems to provide the only way set forth in the Teachers' Retirement Act for a member making additional contributions toward his retirement allowance.
EDUCATION-University of Georgia The University of Georgia is authorized to purchase a Carryall to transport students to and from woodlands off the campus for the purpose of research in Wildlife Conservation.
November 28, 1951 Honorable Harmon Caldwell Chancellor, University System of Georgia
OFFICIAL OPINION QUESTION:
Is the University of Georgia, through its Department of Biology, Forestry School and the Agricultural Extension Service, authorized to purchase a Carryall, which is technically classified as a passenger truck, to transport students to and from woodlands beyond and off the campus of the University for the purpose of training students for conservation work and to carry on basic research in the field in its programs of Wildlife Conservation?
ANSWER: The question is whether -or not the law set forth in Chapter 40-20 of the
1933 Code (Acts 1933, pp. 106-110) prohibits the Board of Regents from purchasing station wagons to be used exclusively in transporting students and equipment to and from farms and woodland areas beyond the campus limits of the University where field studies are made as a part of the curricula of the Department of Biology, Forestry School and the Agricultural Extension Service of the University.
A careful analysis of Chapter 40-20 of the Code of 1933, (Acts 1933, pp. 106-110) reveals that the object and purpose of this statute is to prohibit any department, institution, bureau or agency of the State from purchasing passenger automobiles to be used by officials and employees in the performance of their duties for the State government. Section 1 of the Act definitely prohibits the expenditure of State funds for the purchase of passenger carrying automobiles, except for the Governor.

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The praetice of the State government prior to the enactment of this law was to permit State departments and agencies to purchase passenger automobiles to be used in the performance of their official duties. This statute put an end to this practice.
Section 2 of the Act required all departments and agencies of the State to deliver any automobiles in their possession to the State Supervis<>r of Purchases, and he in turn in conjunction with the head of the departments involved, was authorized to sell these automobiles in accordance with the terms of the Act.
Now that the old system of furnishing transportation to State Officials and employees had been changed so that the departments and agencies no longer could purchase automobiles to be used in the performance of their official duties, it was necessary for the legislature to create a new system to be used in lieu of the one being discarded.
Section 3 sets up the new system, by providing a rate of mileage "to be paid to officers, officials, or employees of the various departments, institutions, boards, bureaus, and agencies, as traveling expense when traveling in the service of the State for any agency thereof by automobile." It was provided that the rate of mileage should not exceed five cents per mile. This rate of mileage was subsequently changed so as to provide that the rate should be fixed by the Supervisor of Purchases not to exceed seven cents per mile. Pursuant to this authority the Purchasing Agent has fixed the maximum rate at six cents per mile.
Section 4 of the Act provided that "all officers, officials, )r employees of the State and of the various departments, institutions, boards, bureaus, and agencies of the State, required to travel by automobile in the performance Of their official duties, shall themselves furnish out of their own personal funds such automabile as may be necessary for their official use, and shall receive, for the use of such automobile and as expense of operating the same, such mileage allowance as is fixed by the State Supervisor of Purchases in conjunction with head or heads of various departments and bureaus.
Section 5 of the Act then sets forth the procedure to be followed in obtaining such mileage payments, and requires that "the State Supervisor of Purchases shall have authority to inquire into the correctness and legality of such mileage tickets," and that when the same has been approved it shall be paid "to the officer or employee making the same from the general funds appropriated for such department or institution."
We have cited the above provisions of the Act in order to illustrate the legislative intention. This is done pursuant to Code Section 102-102 (9) Code of 1933, which provides that:
"In all interpretations the Courts shall look diligently for th.e intention of the General As~embly, keeping in view, at all times, the old law, the evil and the remedy ..."
The Courts have followed the foregoing Code Sections in a number of cases, two of which are Georgia Railroad Company vs. Wright, 124 Ga., p. 626, and Acree vs. State, 122 Ga., p. 144.
It is my firm opinion that the prohibition in the foregoing Code Sections is restricted to the purchase and use of passenger carrying vehicles by agencies of the State government for use by State officials and employees. It does not apply to the purchase of a passenger carrying vehicle by the Board of Regents of the University of Georgia to be used exclusively as a means of transporting students and equipment to and from woodlands beyond and off the campus of the University pursuant to a prescribed course of study that requires such

290
transportation for basic research. (Opinions of the Attorney General 1948-49, p. 146). In this interpretation we make a distinction between the purchase of a passenger carrying vehicle by an Agent of the State government for use by State officials and employees, and the purchase of such a vehicle by a State agent to be used pursuant to a prescribed course of study by students which necessitates transportation of equipment and students to and from the campus.
Under paragraph 1, of Section 4. Article 8. the State Comtitution in part provides as follows:
"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 of Regents of the University System of Georgia ..."
Under the above constitutional provision, the Board of Regents of the University System of Georgia is authorized to control and manage the University System which includes the Department of Biology, Forestry School, and the Agricultural Extension Service. If the Board determines that it is necessary to maintain an off-campus class of education in the field of Wildlife Conservation in order to carry out the duties and responsibilities of the Department of Biology, F'orestry School and Agricultural Extension Service, then I see no reason why proper equipment should not be purchased by the State for this project.
If for any reason the Board of Regents of the University System of Georgia should deem it to be to the best interests of the Department of Biology, Forestry School, and Agricultural Extension Service of the University of Georgia, it could either purchase a passenger carrying vehicle, known as a station wagon or Carryall, to transport students to and from their classes of study in the field beyond the limits of the campus of the University, and for the purpose of carrying equipment to be used by such classes, or the Board of Regents might decide to enter into a special contract to have this service performed.
It is clear that if a contract of this character is val.id, and I feel that it would be, then it likewise follows that the Board of Regents would be authorized to purchase a station wagon or Carryall for this purpose.
EDUCATION-University System Building Authority (Unofficial) 1. Bonds of the University Building Authority may be used as deposits with the State Treasury as required for insurance companies. 2. The bonds of the Authority may be used as bonJs to ~ecure State deposits. 3. The bonds of the Authority constitute investments in which funds of State banks may be invested.
May 7, 1951
Mr. G. Arthur Howell, Jr. We note inquiries have been made to you in regard to the eligibility of the
bonds of the University System Building Authority as securities which may be deposited with certain departments of the State Government with specific reference to the insurance departments of the State.
We note that you have also received inquiries as to the eligibility of the University System Building Authority bonds for use as bonds to be deposited to secure State funds.
You state further that other inquiries have been received as to the eligibility

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of the University System Building Authority bonds as investments for State banks.
Section 20 of the University System Building Authority Act (Ga. Laws 1949, pp. 1009-1024) states as follows:
"The bonds herein authorized are hereby made securities in Yvhich all public officers and bodies of this State and all municipalities and all municipal subdivisions, all insurance companies and associations and other persons carrying on an insurance business, all banks, bankers, trust companies, savings banks and savings associations, including savings and loan associations, building and loan associations, investment companies and other persons carrying on a banking business, all administrators, guardians, executors, trustees and other fiduciaries and all other persons whatsoever who are now or may hereafter be authorized to invest in bonds or other obligations of the State may properly and legally invest funds including capital in their control or belonging to them. The bonds are also hereby made securities which may be deposited with and shall be received by all public officers and bodies of this State and all municipalities and municipal subdivisions for any purpose for which the deposit of the bonds or other obligations of this State is now or may hereafter be authorized."
It is my opinion that bonds of the University System Building Authority may be used as deposits with the State Treasurer as required for insurance companies under the provisions of Section 56-301 of the Georgia Code, as amended.
It is my further opinion that bonds of the University System Building Authority as provided in the last sentence of Section 20 above quoted are eligible to be used as bonds to secure State deposits as provided in Section 100-108 of the Georgia Code.
It is my further opinion that said University System Building Authority bonds constitute investments in which funds of State banks may be invested in accordance with the provisions of Section 13-2023 Georgia Code, as amended, Acts 213 Georgia Laws 1951, p. 284 ff.
ELECTIONS-August General Election 1. The 1945 Constitution did not nullify the August general election as a whole, but only so much of that Act as pertained to the submission of proposed Constitutional amendments. 2. The August general election must be held Biennially. 3. A solicitor general can be elected at an August general election to fill an unexpired term.
May 17, 1951
Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUESTIONS:
1. Did the new Constitution of 1945 repeal or nullify the Act approved March 18, 1943 (Acts 1943, page 535), creating a Statewide general election known as the August General Election?
2. Does the law now require the holding biennially of an August general election?
3. Should a Solicitor General be elected at an August General E,lection, 1951, to fill the remainder of the unexpired term of the late Honorable Charles H. Garrett, to take office January 1, 1952?

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ANSWER: The General Election Biennially in August Act, (Georgia Laws, 1943, page
535), provides: "Section 1. In addition to the general election created under and by virtue
of an Act approved .August 14, 1914 (Acts 1914, pages 47-48), there is hereby created and established a State-wide general election to be known as the August general election which shall be held biennially on Tuesday after the first Monday in August, beginning on the above date in 1943, which election shall be held in the same manner, with the same formality, and in accordance with all rules and regulations in existence in holding the November general election, and which August general election shall be held in every county and every Militia District therein in the State for the purpose hereinafter specified in detail in this Act.
"Section 2. The August general election herein created is hereby designated as being the election in which vacancies shall be filled il' any and all State and county offices, which vacancies may have occurred by reason of the death or resignation of the incumbent or nominee therefor, or otherwise, since the last preceding general election, except that special elections to fill vacancies may still be held under and pursuant to Chapter 34-17 of the 1933 Code of Georgia, whenever such special election may be more expedient, and may best serve the interests of the State or any county therof, by filling any such vacancy at an earlier date than is provided for in this section.
"Section 3. At the August general election herein created there shall be submitted to the qualified voters of the State for ratification or rejection any and all Constitutional amendments to the Constitution of Georgia, and any and all referendums which may have been enacted and proposed by the General Assembly of Georgia, at any session of such General Assembly since the last November general election, and preceding such August general election, provided that sufficient time between enactment by the General Assembly and approval by the Governor, and the date of holding the August general election exists in which to advertise such Constitutional amendment, or amendments, or referendum, as is provided by law."
An examination of the above Act discloses that it was clearly the intent of the General Assembly to create and establish a State-wide general election to be known as the August General Election, to be held biennially on Tuesday after the first Monday in August, beginning in 1943, in the same manner and formality, and in accordance with all rules and regulations in existence in holding the November general election, for the following specific enumerated purposes:
1. Filling vacancies in any and all State and county offices as provided in said Act.
2. Mandatory submission to the qualified voters of the State for ratification or rejection of any and all Constitutional amendments to the Constitution of Georgia which may have been enacted and proposed by the General Assembly of Georgia, at any session of such General Assembly since the last November general election and preceding such August general election, as provided in said Act.
3. Mandatory submission to the qualified voters of the State any and all referendums which may have been enacted and proposed by the General Assembly of Georgia at any session of such General Assembly since the last November general election, and preceding such August general election, as provided in said Act.
The August General Election .Act (Georgia Laws, 1943, pages 535-537) has

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not been specifically repealed by any Act of the General Assembly as of the date of this opinion. Therefore, it is necessary to consider it in relation to the 1945 Constitution of Georgia which was proposed and ratified approximately two years after the passage and approval of the Act in question, to determine if it conflicts with any Of the provisions thereof.
Before examining the pertinent provisions of the 1945 Constitution, it is well to review the provisions of the 1877 Constitution of Georgia relating to the submission of proposed amendments to the Constitution which was in full force and effect at the time of the enactment of the August General Election Law.
Article XIII, Section I, Paragraph I of the 1877 Constitution of Georgia provided in part:
"And the General Assembly shall cause such amendment or amendments to be published in one or more newspapers in each Congressional District, for two months previous to the time of holding the next general election, and shall also provide for a submission of such proposed amendment or amendments, to the people at said next general election, ..." (Emphasis added.)
It will be noted that under the above cited provision of the 1877 Constitution, proposed amendments to the Constitution were required to be advertised and submitted to the qualified registered voters of the State at the next general election. Under this provision, proposed amendments to the Constitution could be submitted to the November general election at which members of the general assembly were chosen, or at the August general election established by the Act of 1943, being restricted, however, to the election coming immediately after the session of the General Assembly proposing such amendments, provided there was sufficient time in which to advertise such amendments according to law.
The above provision of the 1877 Constitution was changed in the 1945 Constitution. The 1945 Constitution of Georgia restricts the submission of proposed constitutional amendments to the next general election at which election members of the General Assembly are chosen. This restriction is eontained in the following provision:
Article XIII, Section I, Paragraph I of the 1945 Constitution of the State of Georgia provides in part:
"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 next general election at which election members of the General Assembly are chosen; and if such proposed amendments directly affects only one or more political subdivisions of the State, then it shall also be advertised in the area to be directly affected thereby; and shall also provide for a submission of such proposed amendment or amendments to the people at said next general election, . . ." (Emphasis added.)
Considering the 1943 August General Election Act in relation to the above cited provision of the 1945 Constitution, there can be no doubt that part of Section 3 which required proposed constitutional amendments to be submitted to the qualified voters of the State in the August General Election is in direct conflict with the provisions of Paragraph I, Section I, Article XIII of the 1945 Constitution of Georgia, which now requires all proposed constitutional amendments to be submitted at the November general election at which members of the General Assembly are elected.
In view of this direct conflict, it is necessary to determine if the 1943 August General Election Act has been nullified in whole or in part.
Among the cardinal rules of construction which are to be applied in de-

294
termining whether particular legislation is unconstitutional is the rule which requires that, even though a portion of an act is unconstitutional, the courts should preserve and give effect to that part of the legislative will as expressed in the act which is not unconstitutional; that if there be doubt as to the constitutionality of any provision in the enactment, all doubts are to be resolved in favor of the execution of the legislative intent.
The general rule of statutory construction is that where a part of the Act is invalid, if after the objectionable part is omitted, there still r~omains enough to effectuate the legislative intent that the rest of the Act will be given effect.
In the case Of Bennett, Supt. vs. Wheatley, 154 Ga. 591, the Supreme Court of Georgia held:
"Courts should be slow to declare legislative acts unconstitutional. In cases of doubt, the doubt should be resolved in favor of the constitutional validity of legislation. If a construction can be placed upon a statute which will save it from being declared unconstitutional, it is the duty of the courts to adopt such construction, and thus save the act from collision with 0he organic law. If sections, provision, sentences, or phrases can be stricken therefrom without destroying the general legislative scheme, courts should strike them and leave the remainder thereof intact. . . . It is now the well-settled principle of constitutional construction in this State, that, unless the main purpose of the statute, or one of its provisions, is affected by the unconstitutionality of a particular part, the whole act or provision is not thereby defeated. If the statute is in part constitutional and valid, and in part unconstitutional and invalid, and the objectionable portion is so connected with the general theme that, should it be stricken out, effect cannot be given to the legislative intent, the whole statute, section, or portion must fall; but where an act cannot be sustained as a whole, the courts will uphold it in part, when it is reasonably certain that to do so would correspond with the main intent and purpose which the legislature sought to accomplish by its enactment, if, after the unconstitutional part is stricken, there remains enough to accomplish that purpose.... In applying the above principle, this court, in order to preserve the constitutionality of statutes, sections of statutes, and provisions thereof, has stricken sections, has eliminated portions of sections, and even portions of sentences, where this could be done without destroying the general scheme and purpose of the legislation in enacting laws."
In the case of Felton vs. Bennett, 163 Ga. 849, the Supreme Court of Georgia held:
"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. If it be found that the enactment is in some respects invalid and such portions must be avoided, the court will nevertheless preserve all portions of the legislation which are valid and enforceable.''
Following the above cited principles of law as enunciated by the Supreme Court of Georgia, I reach the conclusion and it is my opinion that the General Assembly intended by the enactment of the 1943 August General Election Act to create a State-wide general election to be held at the time and under the conditions as provided therein for the three specific purposes enumerated in said Act, and that said 1943 August General Election Act is now in full force and effect except that portion contained in Section 3 thereof which provides for the submission of proposed constitutional amendments and in this connection, it is my view that this provision has been nullified by Paragraph I, Section I, Article XIII of the 1945 Constitution and is no longer in effect.
Having resolved this phase of the questions, it becomes necessary to de-

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termine if the August General Election is such an election at which a Solicitor General filling an unexpired term by appointment of the Governor should be elected for remainder of the unexpired term.
In the case of Copeland vs. Wohlwender, 197 Ga. 782, the Supreme Court of Georgia held:
"Under Article 6, Section 11, Paragraph 1 of the Constitution (Code 2-3901), providing for the appointment and election of solicitors-general, the general election of August 3, 1943 (Ga. Laws 1943, p. 535), was such an election as authorized the election of a solicitor-general to fill out an unexpired term, the Governor having previously made an appointment to fill the office."
Specifically answering the questions propounded, it is my considered opinion:
1. That the new Constitution of Georgia of 1945 did not repeal or nullify the Act approved March 18, 1943 (Acts 1943, p. 535) creating a State-wide general election, known as the August General Election, as a whole, but did repeal and nullify that part of Section 3 of said Act which required that proposed constitutional amendments be submitted as provided in said Act; that the remaining parts and provisions of said Act are constitutional and of full force and effect.
2. That the 1943 August General Election Act requires the holding biennially of an August general election for the purposes of filling vacancies in any and all State and county offices, which vacancies may have occurred by reason of the death or resignation of the incumbent or nominee therefor, or otherwise, since the last preceding general election, as provided in said Act; and for the submission to the qualified voters of the State any and all referendum-> which may have been enacted and proposed by the General Assembly of Georgia at any session of such General Assembly since the last November general election, and preceding such August general elections, as provided in said Act.
3. That a Solicitor General can be elected at an August general election in 1951 to fill the remainder of the unexpired term of the late Honorable Charles H. Garrett. The person elected would take office on .January 1, 1952.
ELECTIONS-August General Election (Unofficial) The .August General Election law does not apply to the election of a judge of the Superior Court to fill a vacancy for an unexpired term.
May 30, 1951 Honorable Charles Burgamy
I am pleased to acknowledge your letter of May 24, 1951 in which you request that I advise you if HonoraJble Cleveland Rees, .Judge of the Superior Court of the Southwestern Circuit, would be required to run for election in the August General Election, under the Act of 1943, pages 535 and 536.
It is my personal and unofficial view that the question propounded by you is controlled by Bra.ckett v. Ethridge, 190 Ga. 216, in which the Supreme Court of Georgia held:
"The statute providing for a .June State-wide election (Ga. L. 1937, p. 712), 'in whirh vacancies shall be filled in any and all State and county offices, which vacancies may have occurred by reason of the death or resignation of the incumbent or nominee therefor, or otherwise, since the last preceding general election,' does not apply to the election of a judge of the superior court to fill a vacancy for an unexpired term caused by death of the incumbent."

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The August General Election (Georgia Laws, 1943, page 535) is identical in its language with the June General Election Act of 1937 (Georgia Laws, 1937, page 712), with the exception that the month of August was substituted in the 1943 Act for the word "June" that was used in the 1937 Act.
ELECTION-August General Election (Unofficial) 1. All those persons in the general election list for the year 1948 and all those persons who have registered since that time and up to the closing date of the August General Election of 1951 are eligible to vote in such elections. 2. The closing date for registration for the August General Eiection is six months prior to the date of such election. July 2, 1951
Miss Louise Dickinson This will acknowledge receipt of your letter of June 14, 1951, the first
paragraph of which reads as follows: "The Board of Registrars are trying to ascertain if it is necessary to pre-
pare a new registration list for the General Election to be held in August of this Year. They would also like to know the closing date for registering to vote in said election and any other information you may be able to give in regard to this matter."
Section 5 of the Voters' Registration Act as amended reads as follows: ''At any election, held before the first list under the terms of this Act shall have been prepared and filed, the general election list of qualified voters of the year 1948, in conjunction with a supplemental list prepared in accordance with the provisions hereafter set forth shall be used. In the same manner the last general election list of qualified voters shall be used for any election occurring after said list is prepared but before the preparation of a new general election list. Nothing in this section shall be construed so as to prevent the registrars from purging said old list and the supplemental lid and remove therefrom those persons not entitled to vote. These persons on the general election list of qualified voters for the year 1948 and those persons who register under the terms of the provisions of this Act shall be entitled to vote in any election prior to the general election of 1952. Provided, however, that it shall be the duty of the registrars to consolidate the lists for any such election and to make certain that no person is listed more than once on such consolidated list. Provided, that unless authorized by the governing authority of the county, the registrar and other officers employed under this Act shall not work more than two days each month until January 1, 1952, and until such date shall be entitled to compensation only for two days each month." You, will note that all those persons on the general election list of qualified voters for the year 1948 and also those persons who have registered under the terms of this Act are entitled to vote in any election prior to the general election of 1952. These two lists must be consolidated by the registrars. Section 34-1304 of the pocket part of the Annotated Code, which section creates the August general election, provides that that election shall be held in the same manner with the same formality and in accordance with all rules and regulations in existence in holding the November general election. Section 14 of the Voters' Registration Act reads in part as follows: "The registrars shall, in each year in which there is an election for Governor or members of the General Assembly, cease their operations of taking applications from persons desiring to vote in such election six months before the date of such election . . ."

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ELECTIONS-Ballots (Unofficial) That part of the ballot which is dropped into the ballot box should not have any type of number which might identify the voter.
December 29, 1951 Honorable Peter Zack Geer, Jr.
Your letter of December 27, 1951, relating to the numbering of ballots in an election, has been referred to me for reply due to the fact that Mr. Cook left yesterday to be out of the city for a week or ten days. It 130 happens that I was with Mr. Cook when he sent the telegram to Mr. McKinstry and he asked me to answer your letter today.
The telegram, dated December 15, 1951, reads as follows: "Mr. H. R. McKinstry Colquitt, Georgia Re: Telephone conversation. My personal views secret Australian Ballot should contain two perforated stubs top each with number detached by managers. No number on ballot dropped in box.
Eugene Cook The Attorney General"
It is my opinion that Section 34-1914, as it appears in the 1951 Cumulative Pocket Part of the Annotated Code, controls the preparation of ballots. You will note that that Section provides for a stub and a number strip on which shall be printed a letter of the alphabet or some other designation and a number, but I do not believe that the ballot which is actually dropped in the ballot box by the voter contains the designation or number. As you know, the 1941 Act from which this Section was codified is referred to as the secret ballot law and its purpose naturally would be defeated if the ballot actually dropped into the ballot box contained the same number as the stub and number strip. This Act was amended in 1949 so that it applies to every county in the State and to every election in the State (see Code Sec. 34-1917). I realize that some confusion probably stems from the fact that in the various Code Sections dealing with ballots the word "ballot" sometimes seems to refer to the entire set, including the stub, the number :;trip and the part on which the candidates' names are listed, and other times seems to refer only to that part on which the candidates' names are listed.
ELECTIONS-County Board of Education (Unofficial) The county is liable for the cost of holding the elections for members of a county board of education.
January 23, 1951 Honorable W. H. Elliston
I am pleased to acknowledge your letter of January 16, 1951, requesting my opinion as to who should pay the cost of holding the election for members of the Taylor County Board of Education, pursuant to the amendment to the Constitution of Georgia, approved in the general election in November, 1950.
Section 34-1902 of the 1933 Annotated Code of Georgia provides: ''Whenever any election, whether general, special or primary, State, county, municipal, city, town or village, or any election to determine any matter or question which is or may be referred to the vote of the people of the .State, of a county, or of a city, town or village, or any election of any kind or character is to be held, it shall be the duty of the ordinary of each county at the

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expense of the county, or in a case of a purely municipal election, at the expense of the municipality, to provide at each polling place, a private room or rooms, a booth or booths, or an enclosure or enclosures, with such compartments therein as may be necessary to accommodate the persons qualified to vote at such polling places, and shall furnish each compartment with a shelf or table for the convenience of the electors in the preparation vf their ballots. E,ach booth or compartment shall be so arranged that it will be impossible for one elector at a shelf or table in one compartment, or anyone else, to see an elector, at a shelf or table in another compartment in the act of 1narking his ballot. Each voting shelf or table shall be kept supplied with conveniences for marking the ballots. No person or persons, other than the voter himself while occupying the booth or while in the immediate act of voting, shall come within 10 feet of said booth or booths while said polls are open. This section shall not apply to any of the officers in charge of holding said election."
.Section 34-1917 of the 1933 Code of Georgia, enacted 1949, Temporary Supplement, provides, in part:
"The provisions of Sections 34-1902 through 34-1912, providing for election supplies and equipment and the use and control thereof and for the management of elections, shall, except those parts thereof which are in conflict with the provisions of this law, also apply in every county of this State and to all elections by the people, including State, district, County and municipal elections, and including general, special and primary elections. No action by any grand jury shall be necessary to make the same effective."
It is dear that under the above authorities, the Ordinary of the County would be in charge of holding the election for the members of the Taylor County Board of Education under the Constitutional Amendment approved in the November, 1950 election and the expenses of such are to be p'aid from County funds and not from public school funds.
ELECTIONS-Eligibility-Voters (Unofficial) A person convicted of a crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, may not vote in this State unless such person shall have been pardoned.
January 25, 1951
Honorable Frederick A. Moran I am in receipt of your letter of January 22, 1951 in which you state: "An individual who has been convicted of a felony in the State of New
York may not vote unless the legal disability, incurred through his conviction, is removed, either by the grant of a certificate of good conduct issued by the Board of Parole of New York, or the grant of a gubernatorial pardon.
"An individual who has been convicted, in another state, of a crime which would constitute a felony if committed in New York State, may not vote in New York until he obtains a pardon from the Governor of the State in which the conviction occurred.
"An individual who was convicted of a felony in New York, and now resides in 'Georgia, requested a certificate of good conduct from the Board of Parole in New York in order that he may vote in Georgia."
You ask if this individual would be barred from voting in Georgia because of his felony conviction in the State of New York, and if so, would the grant of a certificate of good conduct, to end disability under the election laws of New York, restore his right to vote in Georgia.

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Article II, Section II, Paragraph I of the Constitution of Georgia provides as follows:
"The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those whQ shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned. 2nd. Idiots and insane persons."
Therefore, one convicted of a felony in New York would be deprived of his right to register and vote in Georgia, and the grant of a certificate of good conduct to end disability under the New York law would not restore hi~ right to vote in the State of Georgia. In order to have his disabilities removed it would be necessary to obtain a pardon from the pardoning power o:f the State of New York.
ELECTION-Eligibility-Voters (Unofficial) Only those persons shall be allowed to vote who have fir;;t registered in accordance with the law.
April 9, 1951 Miss Mary Ann Morgan
This will acknowledge receipt of your letter of April 5, 1951 in which you request information regarding the qualifications for voting in the State of Georgia.
I am happy to quote you four sections of the Georgia Constitution of 1945 which I hope will be of some help to you:
"Section 2-701. Elections by the people shall be by ballot, and only those persons shall be allowed to vote who have been first registered in accordance with the requirements of law."
"Section 2-702. 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 entitled 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."
"Section 2-703. 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."
"Section 2-704. 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 prescri,bed in Paragraphs II and III of this Section or who will possess them at the date of the election occurring next after his registration, and who in addition thereto comes within either of the classes provided for in the two following subdivisions of this paragraph.
"1. All persons who are of good character and understand the duties and obligatlons of citizenship under a republican form of government; or
"2. All persons who can correctly read in the English language any para-

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graph of the Constitution of the United States or of this State and correctly write the same in the English language when read to them by any one of the registrars, and all persons who solely because of physical disability are 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."

ELECTIONS-Eligibility-Voters (Unofficial) Any person whose name is on the list furnished by the Board of Registrars
shall have the right to vote unless such right shall be challenged.
June 8, 1951 Honorable H. Lee Moore
I am in receipt of your letter of June 6, 1951 in which you :request information as to what persons shall be eligible to participate in the special election which you are holding on June 16 to elect a Justice of the Peace for the 34th General Militia District.
Section 34-2701 of the 1933 Annotated Code of Georgia states that the justices of the peace shall be elected by the voters of their respective districts. As yon know all persons who are on the registered voters' list for a Militia District are eligible to vote in any election held in that Militia District. However this is qualified by the fact that it is up to the board of registrars to see that no one is on that list who is not a resident of that Militia District, except as is provided in Section 34-1301 of the 1933 Code of Georgia where an incorporated city or town is split by a Militia District line, then persons residing within such incorporated limits may vote in any Militia District located within said incorporated city.
'Threfore, it is my opinion that if those persons who are non-residents of the 34th Militia District are on the registered list that is supplied to you by the board of registrars, then they shall have the right to vote in such election unless their right shall be challenged.

ELECTIONS-Special Elections (Unofficial) Pe>:sons may register and qualify to vote in a special election up to five days before any such election.

Honorable F'olks Huxford

June 22, 1951

I am in receipt of your letter of June 15, 1951 in which you ask what the

time limit is for a person to register and qualify to vote in a special election

,on the question of "Fence" or "No-fence" law in a county.

Code Section 34-118, Pocket Supplement of the Annotated Code of Georgia

,of 1933, reads as follows:

"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 suc-

ceeding general or special election, first qualify by registering with the proper

officials of the county, city, or town of the State at least four months before

any such future general election and five days before any such special election.''

It is my opinion that a person would have the right to register and quality

to vote in a special election up to five days before any such election.

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EXECUTIVE DEPARTMENT-Governor The Governor is given broad discretionary powers in offering and causing to be paid rewards for the detention or apprehension of the perpetrator of any felony committed within this State.
February 2, 1951 Honorable Herman Talmadge Governor of Georgia
OFFICIAL OPINION FACTS:
On May 18, 1949, acting upon information from the Solicitor General of the Augusta Judicial Circuit, the Governor issued a proclamation offering a reward for the apprehension and delivery to the Sheriff of Richmond County, with evidence to convict, the unknown person who shot and killed August Tantillo on April 21, 1949, in Augusta, Georgia, in the County of Richmond.
Sheriff P. D. Reddish, of Bradford County, Florida, arrested Walter McDonald, who confessed to him, under oath, in writing, in the presence of witnesses, that he fired the shot which killed August Tantillo. Sheriff Reddish also obtained a confession from George Woolfolk, Jr., that he was present as an accessory to the crime. He also obtained corroborating evidence from other parties present when the crime was committed; these confessions with corroborating evidence obtained being ample evidence to convict.
Both McDonald and Woolfolk were convicted of a hold-up murder committed on May 8, 1949, in Bradford County, Florida, and both were electrocuted on January 8, 1951, at the Florida State Prison at Raiford, Florida. For this reason, they could not be delivered alive to the Sheriff of Richmond County.
LAW: Section 27-101 of the 1933 Code of Georgia provides in part: "The Governor shall, in his discretion, offer, and cause to be paid, rewards
for the detention or apprehension of the perpetrator of any felony committed within this State, such reward not to exceed the sum of $250.00 in cases of felonies not capital, and not to exceed the sum of $500.00 in capital cases; but no such reward shall be paid to any officer who shall arrest such person in the regular discharge of his duty, by virtue of process in his hands to be executed, nor to any person who has arrested the offender previously to the publication of the reward . . . . ."
46 American Jurisprudence, Section 20, states: "As in the case of any other contract, the offerer may waive substantial compliance with the conditions of his offer and accept such performance as is satisfactory to him." 46 American Jurisprudence, Section 21, states: "Courts have often held that substantial compliance with the terms is sufficient, especially where a literal compliance would be impossible. A reward offered for the arrest and delivery of a person is earned by a claimant, who, after having captured the fugitive, is deprived of his custody by the authorities, or turns him over to them." In the case of Hewitt v. Lamb, 130 Ga., p. 712, the Supreme Court of Georgia, in deciding a case involving the payment of a reward for the arrest and delivery to the Sheriff of Washington County of the body of a certain named person charged with the commission of a crime, held: "The literal compliance by the person claiming to have performed the conditions of the offer was not absolutely essential, as a foundation of his claim to the reward . . . Substantial performance is usually held sufficient. Offers of

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reward are usually made for substantial objects, for the accomplishment of certain results, and not for bare acts; and hence it is that the accomplishment of the result contemplated by the offer is held to be a substantial performance of the services which constitute the consideration for the promise of reward, regardless of the manner or method by which that result is reached . . . . . Substantial performance being sufficient, as has just been seen, and itself being dependent upon the accomplishment of certain results aimed at by the offer, it follows, according to the accepted doctrine of cause and effect, that if the acts or services relied on as constituting the consideration for a promise of reward constitute the proximate cause of the result contemplated by the offer, the consideration will be held to be substantially performed, and the contract to be complete."
OPINION: Under Section 27-101 of the Code, the Governor is given broad discretionary
powers in offering and causing to be paid the rewards enumerated therein. The primary purpose of offering the reward in question was to cause the
apprehension and punishment, according to law, of the person who shot and killed August Tantillo. There can be no doubt that this purpose was accomplished by the apprehension and legal electrocution of Walter McDonald for a similar crime committed in the State of Florida immediately after he had committed the crime of murder in Richmond County, Georgia; the punishment of death which he received in Florida being the highest punishment that he could have received in the State of Georgia.
In the light of the above-cited authorities and the fact that the Sheriff of Bradford County, Florida, was deprived of the custody of Walter McDonald, the person referred to in the Governor's proclamation, by reason of his legal execution by the State of Florida before he could be actually delivered to the Sheriff of Richmond County, Georgia, it is my opinion that substantial performance of the services called for in the Governor's proclamation of May 18, 1949, has been complied with by Sheriff P. D. Reddish, of Bradford County, Florida, and that the Governor, in his discretion, has the authority and is authorized to cause to be paid to Sheriff P. D. Reddish the sum of $250.00 as offered in said proclamation.
THE EXECUTIVE DEPARTMENT-Merit System 1. An employee of the State Department of Education who has been dismissed by the Superintendent of Schools must appeal his dismissal to the State Board of Education before any other action can be taken on his case. 2. If the dismissed employee is dissatisfied with the decision of the State Board of Education, he may appeal to the State Personnel Board. 3. The State Superintendent of Schools may dismiss an employee subject to review by the Board of Education. 4. The Board and the Superintendent are vested with joint authority as to the appointment of personnel within the Department of Education, subject to budgetary controls.
August 30, 1951 Honorable Edwin L. Swain Merit System Director
OFFICIAL OPINION QUESTIONS:
1. Does the appeal of an employee of the State Department of Education, protesting his dismissal by the State Superintendent of Schools, lie first to the State Board of Education?

303
2. If such an appeal does lie, would an appeal from the ruling of the State Board of Education then lie to the State Personnel Board?
3. Can the State Superintendent of Schools legally dismiss an employee of the State Department of Education without the approval of the State Board of Education?
4. Is the State Board of Education or the State Superintendent of Schools vested with the "Appointing Authority" over personnel within the State Department of Education or is it exercised jointly by both? ANSWER:
In answer to question number 1, it is my opinion that an appeal of an employee of the State Department of Education, protesting his dismissal by the Superintendent of Schools, lies first to the State Board of Education.
In support of this position I refer you to Article 8, Section 2, Paragraph 1, of the 1945 Constitution, which provides in part as follows:
"... The said State Board of Education shall have such powers and duties as provided by law and existing at the time of the adoption of this Constitution, together with such further powers and duties as may be hereafter provided by law." (underscoring supplied)
At the time of the adoption of the 1945 Constitution there existed Code Section 32-403 (Acts 1919, p. 292) which, after defining the powers and duties of the State Board of Education in specific, concluded with this provision:
"... The Board shall be the final Board of Appeal to hear and decide on matters appealed from the State Superintendent, shall determine the necessary office force of the Superintendent, ..."
Likewise there existed Code Section 32-501 (Acts 1919, p. 311) which, after defining in specific the duties of the State Superintendent of Schools, concluded with the following provision:
"... Provided, there shall always be an appeal from the State School Superintendent to the State Board of Education."
There also existed Code Section 32-410 (Acts 1937, pp. 864-866) which provided that:
"The Board shall have general supervision of the State Department of Education and shall employ and dismiss, upon the recommendation of the State Superintendent of Schools, such clerical employees, supervisors, administrators, and other employees as may be necessary for the efficient operation of the common school system."
The records of the Constitution Commission, 1943-1944, Volume 2, pp. 62-63, reveal that the Commission unanimously agreed that the powers and duties enumerated in Code Section 32-410 were "frozen" into the 1945 Constitution under the provision above quoted.
Section 27 of the Minimum Foundation Act (Ga. Laws, regular session, 1949, pp. 1418-19) provides that:
"The State Board of Education shall administer this Act, with the exception of Section 29, and enforce its provisions. The State Superintendent of Schools shall be the executive and administrative secretary of the State Board of Education for that purpose. In administering this Act, the State Board of Education shall employ upon the recommendation of the State Superintendent of Schools such supervisors or other employees as may be necessary ...."
In two opinions-one to Honorable Henry D. Blount, Chairman Finance Committee, State Board of Education, dated April 30, 1951, and one to Honorable George P. Whitman, Jr., dated May 18, 1949-in which I interpreted Code Section 32-410 and Section 27 of the Minimum Foundation Act, I concluded that subject to the State Merit System laws, rules and regulations and the budget and appro-

304
priations controls, as between the State Board of Education and the State Superintendent of Schools, the final decision to be made in the Department of Education as to the employment and dismissal of employees rests in the State Board of Education, who shall have the benefit of and give due consideration to the recommendations of the State Superintendent of Schools.
In answer to question number 2, an appeal of an employee of the State Department of Education protesting his dismissal by the State Superintendent of Schools also lies from a ruling of the State Board of Education to the State Personnel Board. In other words, if, after a hearing by the State Board of Education, the dismissed employee is dissatisfied with the decision, he may appeal to the State Personnel Board, whose decision will be final.
It is my considered opinion that the right of appeal from a decision of the State Board of Education to the State Personnel Board is not in conflict with the above cited procedural statutes which were frozen into the 1945 Constitution, since those statutes were obviously intended to operate within a department having two divisions with joint authority.
The State Merit System Act of 1943 provides for an overall inter-departmental personnel machinery which has the effect of implementing whatever personnel procedures that might exist within any given department, and has no relationship to whatever intra-departmental procedures that may exist. The 1950 Act of the General Assembly (Ga. Laws 1950, p. 190) simply extended the provisions of the overall Merit System Act to the employees of the State Department of Education. This Act did not have the effect of nullifying any of the personnel procedures cited in the above Code Sections, but rather implemented them to the extent of adding protection to the employees and efficiency to the Department.
In answer to question number 3: While the law is not clear on this point, it is my opinion that since the Superintendent is the executive officer of the Department, he may dismiss an employee, but such action is subject to review by the Board.
As to question number 4, from the above cited provisions of law applicable to personnel procedure within the State Department of Education, the Board and the Superintendent are vested with joint authority, subject to budgetary controls as authorized by law. The responsibility for initiating employment or dismissal action is vested in the Superintendent, subject to approval or disapproval by the Board. Under Section 2 of the Act placing the Department of Education under the Merit System (Ga. Laws 1950, p. 190) certificates of satisfactory service-which is the basis for the State Personnel Board determining permanent status-is vested in the Superintendent.
EXECUTIVE DEPARTMENT-Merit System The Merit System laws supersede the previous laws fixing the salaries of the officials of the departments coming under the Merit System, except for those positions which might be exempted from the Merit System.
October 16, 1951
Honorable C. H. Alden, Director Department of Entomology
OFFICIAL OPINION FACTS:
The salaries of the officials of the Department of Entomology were fixed by law. Subsequent to this law, the Merit System laws were passed and purport to bring these officials under their operation.

305
QUESTION: Do the Merit System laws supersede the previous laws fixing the salaries
of the officials of the Department of Entomology? ANSWER:
By an Act of the General Assembly, approved February 15, 1950 (Georgia Laws, 1950, page 191), "All employees of the State Department of Entomology, except the Director, shall be governed by such rules of position, classification, appointment, promotion, demotion, transfer, dismissal, qualification, compensation, seniority privileges, tenure, and other employment standards as may now or hereafter be established under such merit system control as may be authorized by the Act, approved February 4, 1943, (Georgia Laws 1943, pages 171-177) providing for a Merit System Council, or any amendments thereto."
The above quotation constitutes Section 1 of the Act which brings all employees of the Department of Entomology under the Merit System, except the Director.
This Act also contains the general repealer section.
It is my view that this Act supersedes all prior Acts which are in conflict with this Act and under the construction I place upon it, every person employed by the Department of Entomology with the sole exception of the Director comes under the terms of this Act.
The foregoing conclusion is not in conflict with my opinion to Honorable Edwin L. Swain, Director of the State Merit System, dated November 28, 1950, in which I held in substance that the statutory salaries of the State Librarian, and Director of the State Banking Department, were repealed by the Act bringing those Departments under the Merit System. It is to be noted that in the latter Acts ~ll officials and employees were brought under the Merit System and that no exceptions were made as to the Directors, as in the Acts bringing the Department of Entomology under the System.

EXECUTIVE DEPARTMENT-State Purchases 1. No official or department of the State of Georgia has the authority to pay into the United States Treasury, in trust, advance sums of money to be applied in the payment of the State's share of the cost of defense equipment and supplies. 2. No official or department of the State of Georgia has the authority to reimburse any agency of the Federal Government in any expense where the initial outlay has been paid from the United States Treasury.

March 13, 1951

Honorable Herman Talmadge Governor of Georgia

QUESTION:

OFFICIAL OPINION

Can the State of Georgia legally: (1) pay into the United States Treasury, in trust, advance sums to be applied in payment of the State's share of the cost of defense equipment, and supplies, and, (2) reimburse the Federal Government for Georgia's share in any instance where the initial outlay is wholly paid from the United States Treasury?

ANSWER: Section 40-1902 of the 1933 Annotated Code of Georgia, Pocket Supplement,
provides:

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"The Supervisor of Purchases shall have power and authority and it shall be his duty subject to the provisions of this Chapter:
A. To canvass all sources of supply, and to contract for the purchase of all supplies, materials and equipment required by the State Government, or any of its departments, institutions or agencies under competitive bidding in the manner and subject to the conditions hereinafter provided for."
Section 40-1909 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides:
"If the total requirement of any given commodity will involve an expenditure in excess of $1,000, sealed bids shall be solicited by advertisement in a newspaper of State-wide circulation at least once and at least 10 days prior to the date fixed for opening of the bids and awarding of the contract: Provided, other methods of advrtisement may be adopted by the Supervisor of Purchases, when such other method is deemed more advantageous for the particular item to be purchased. Regardless of the amount of expenditure, it shall be the duty of the Supervisor of Purchases to solicit bids direct by mail from reputable owners of supplies."
Section 40-1910 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides:
"Except as otherwise provided for in this Chapter, all contracts for the purchase of supplies, materials or equipment made under the provisions of this Chapter shall, wherever possible, be based on competitive bids and shall be awarded to the lowest responsible bidder, taking into consideration the quality of the articles to be supplied and conformity with the standard specifications which have been established and prescribed, the purposes for which said articles are required, the discount allowed for prompt payment, the transportation charges and the date or dates of delivery specified in the bid."
Section 40-1911 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides:
"Competitive bids on such contracts shall be received in accordance with rules and regulations to be adopted by the Supervisor of Purchases, which rules and regulations shall prescribe among other things, the manner, times and places for proper advertisement for such bids, indicating the time and place when such bids will be received, the article for which said bid shall be submitted, and the standard specification prescribed for such article, the amount or number of the articles desired, and for which the bids are to be made, and the amount, if any, of bonds or certified checks to accompany the bids. Any and all bids so received may be rejected."
Section 40-1918 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides:
"Whenever any department, institution, or agency of the State Government, required by this Chapter and the rules and regulations adopted pursuant thereto applying to the purchase of supplies, materials, or equipment through the Supervisor of Purchases shall contract for the purchase of such supplies, materials, or equipment contrary to the provisions of this Chapter or the rules and regulations made hereunder, such contract shall be void and of no effect."
Section 40-1919 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides:
"If any such department, institution, or agency purchases any supplies, materials or equipment contrary to the provisions of this Chapter or the rules and regulations made hereunder, the executive officer of such department, institution, or agency shall be personally liable for the cost thereof, and if such supplies,

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materials, or equipment are so unlawfully purchased and paid for out of the State funds, the amount thereof may be recovered in the name of the State in an appropriate action instituted therefor."
Section 40-1935 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides:
"To each and every invoice paid by any State agency or department, there shall be attached the delivery receipt and also a copy of the purchase order issued by the Supervisor of Purchases. And it shall be the duty of the State Auditor to disallow, as an illegal payment, any payments that do not have the receipts and purchase orders attached to the invoice paid. It shall also be the duty of the State Auditor to point out these items in the annual audit of each agency or department of the State."
Under the above-cited provisions of law, the State can purchase equipment, material or supplies only through the office of the Supervisor of Purchases, and then only in accordance with the methods prescribed by law, as fully set forth in Chapter 40-19 of the 1933 Annotated Code of Georgia, Pocket Supplement. Any contract made in any other fashion not prescribed by said law and the regulations of the Supervisor of Purchases shall be void and of no effect.
Article 7, Section 3, Paragraph 1 of the Constitution of Georgia provides that the State cannot by contract or otherwise create a debt except for the purposes provided in said provision of the Constitution, which reads as follows:
"No debt shall be contracted by, or on behalf of, the State, except to supply such temporary deficit as may exist in the treasury in any year for necessary delay in collecting the taxes of that year, to repel invasion, suppress insurrection and defend the State in time of war, or to pay the existing public debt; but the debt created to supply deficiencies in revenue shall not exceed, in the aggregate, five hundred thousand dollars, and any loan made for this purpose shall be repaid out of the taxes levied for the year in which the loan is made. However, said debt may be increased in the sum of three million, five hundred thousand dollars for the payment of the public school teachers of the State only. The principal amount borrowed for payment of teachers shall be repaid each year out of the common school appropriation, and the interest paid thereon shall be paid each year out of the general funds of the State."
No State agency or official thereof may contract for any property or service unless at the time the contract is negotiated there is money available by appropriation and budget regulations with which to make payment. Georgia, by its Constitution, is required to transact its business on a cash basis. No public officer can pledge its credit except for the five permitted purposes in the Constitution.
Particular attention is called to the provisions of Section 40-1935 of the Code which provides that a delivery receipt and a copy of the purchase order issued by the State Supervisor of Purchases shall be attached to each and every invoice paid by any State agency or department and that it shall be the duty of the State Auditor to disallow, as an illegal payment, any payments that do not have the receipts and purchase orders attached to the invoice paid.
From a careful study of the legal questions proposed by the Administrator of Federal Civil Defense, I reach the conclusion and it is my opinion that no official or department of the State of Georgia has the authority to pay into the United States Treasury, in trust, advance sums of money to be applied in payment of the State's share of the cost of defense equipment and supplies. The effect to so do would be vesting the purchasing powers of the State of Georgia in the hands of a Federal official beyond the borders of this State to be used by him in his discretion.

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I reach the further conclusion and it is my opinion that no State official or department of the State of Georgia has the authority to reimburse any agency of the Federal Government in any expense where the initial outlay has been paid from the United States Treasury.
EXECUTIVE DEPARTMENT-Supervisor of Purchases The Supervisor of Purchases is authorized to purchase a 29-passenger bus for the use of the Fort Valley State College in the transportation of students.
November 28, 1951 Ron. B. B. George Supervisor of Purchases
OFFICIAL OPINION QUESTION:
Is the Supervisor of Purchases authorized to purchase a twenty-nine passenger bus for the use of the Fort Valley State College?
ANSWER: Code Section 40-2001 of the 1933 Code of Georgia is as follows: "Purchase of passenger automobiles from State funds prohibited; exception
for Governor.-No funds appropriated to any department, institution, board, bureau, or agency of this State shall be used for the purchase of any passengercarrying automobile whatsoever, and it shall be unlawful to expend any funds appropriated to any such department, institution, board, bureau, or agency or any State funds otherwise coming into the possession of any such department, institution, board, bureau, or agency for the purchase of any passenger-carrying automobile, except one passenger automobile and motorcycles for use of the Governor. Nothing in this law contained shall affect or relate to trucks, tractors, or trailers. (Acts 1933, pp. 106, 110.)"
A careful analysis of the above Code Section, as well as of the entire Chapter 40-20, reveals that the object and purpose of this statute is to prohibit any department, institution, bureau or agency of the State from purchasing passengercarrying automobiles to be used by officials and employees in the performance of their duties for the State Government.
In the printed opinions of the Attorney General, 1948-1949, page 146 et seq., a discussion is given relative to the Board of Regents purchasing vehicles to transport students for the Veterinary School. In that opinion I held that the purchase of station wagons to transport students to and from farms for the purpose of studying and observing treatment of animals under farm conditions was valid.
In the request for an official opinion which you have presented to me with reference to the passenger bus for the Fort Valley State College, you have not given any facts relating to the use of the bus, but for the further sake of discussion in this opinion, I shall assume that the bus will be used by the school to transport students for a cause which has been declared by the Board of Regents to be necessary and essential, otherwise at the outset it is obvious that your question must be answered in the negative.
The practice of the State Government prior to the enactment of the Code Section 40-2001, supra, was to permit the State departments and agencies to purchase passenger automobiles to be used in the performance of their official duties. This Code Section put an end to this practice. The statute thus was directed at the practice of State departments and agencies supplying automobiles for their officers and employees.

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It is true that if Section I of the Act were considered separate and distinct from the other provisions of the Act, a State agency would be prohibited from purchasing a passenger-carrying automobile to be used exclusively for school purposes, even though this vehicle would in nowise be used by officers and employees of the State in the discharge of their official duties. However, when Section 1 is construed in connection with the other sections of the Act, it becomes very apparent that State agencies are prohibited from purchasing passenger automobiles to be used by State officials and employees in the performance of their duties. Sections of an Act should not be interpreted in an isolated manner apart from the other provisions of the Act, as has been pointed out many times in rules of statutory construction.
In a technical sense it might be argued that since the statute uses the word "automobile" that a bus does not fall within the statutory prohibition, just as State agencies may purchase under certain needed conditions a truck or a tractor. However, since the General Assembly did use the descriptive and qualifying phrase, "passenger-carrying automobile", I am inclined to believe that the General Assembly intended to include all such motor vehicles which are designed primarily for "passenger-carrying", as station wagons, buses ,etc. Otherwise, why did the General Assembly add the words "passenger-carrying", since per sean automobile is "passenger-carrying." It is very apparent then that the statutory prohibition did not apply to all motor vehicles, nor was it restricted to automobiles alone, but it encompasses all motor vehicles designed primarily for passenger-carrying, or to use the exact words of the statute all "passenger-carrying automobiles."
But in keeping with the above principles of law, I am of the opinion that the purchase of a passenger bus for the Fort Valley State College is not prohibited by Chapter 40-20, supra, if the Board of Regents has declared that its use will be for transporting students only and that such use is necessary and essential for the education of the students at that particular school.
EXECUTIVE DEPARTMENT-Supervisor of Purchase The Supervisor of Purchases is not required by law to maintain permanent records on mileage tickets.
October 23, 1951
Mr. S. F. Skrine Assistant Supervisor of Purchases
OFFICIAL OPINION QUESTION:
Is it necessary for the Supervisor of Purchases to maintain permanent records on mileage tickets ? ANSWER:
Code Section 40-2004 of the 1933 Code of Georgia provides in part that: "The head of such agency, board, bureau, or institution, or his authorized agent, shall within five (5) days after receipt of such weekly report, audit the same and place thereon his approval or disapproval of the same, and promptly forward copy of each ticket to the State Supervisor of Purchases for his record." There is no provision in the statute which states that the Supervisor of Purchases shall keep such tickets as a matter of permanent record. It is my opinion, therefore, that the length of time which the tickets should be kept is a matter of policy for the Supervisor of Purchases to establish. I am informed that each individual department maintains a permanent record of these mileage tickets as they affect that particular department, so that after a reason-

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able length of time, provided the Supervisor of Purchases is satisfied as to the correctness and legality of the mileage tickets, and there is no controversy or anticipated controversy concerning the same, I believe that there is no prohibition concerning the disposing of same according to his judgment.
FORESTRY AND GEOLOGY-State Parks The Governor has authority to sell or otherwise dispose of unserviceable forest products.
May 11, 1951 Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION FACTS:
In several of the State Parks and recreational areas there are mature and over-mature timber, overcrowded stands, diseased trees and undesirable species of timber that should be removed for the beneficial and future growth of other desirable and necessary trees for expanding recreational and park purposes and to preserve and improve the forest areas therein.
The harvesting of such trees is beneficial to the future growth and development and in keeping with good timber management and that such harvesting should be allowed on certain lands now owned by the Department of State Parks.
QUESTION: Advise me if the State Department of Parks is vested with the authority
to dispose of such trees and timber and, if not, where such authority, if any, exists.
ANSWER: I have reviewed the laws relating to the Division of State Parks, Historic
Sites and Monuments of the Division of Natural Resources, and I do not find any express grant of authority to this agency to sell or to dispose of timber, forest products or any other State property. However, this State agency is vested with the immediate control and management of all State Parks and recreational areas not otherwise delegated to some other State Department and is charged with the responsibility of operating and maintaining the State Parks and recreational areas in keeping with recognized and sound methods of preservation and maintenance of the properties under its control. Under this responsibility, it would certainly have not only the right but the duty to see that forests or woodlands of the State Parks and recreational areas under its management are maintained in a manner which would assure the greatest growth, beautification and useability of the trees and timber thereon in keeping with sound park and forest practices. This would, in my opinion, include the harvesting of mature and over-mature timber, diseased trees, crooked trees, undesirable species, deformed trees and thinning in overcrowded stands, when the purpose of such action is to assure reproduction and continuous growth of more desirable trees and increase the value of the forest features of State Parks and recreational areas in future years.
Although the Division of State Parks would be authorized to do the things above pointed out, I am of the opinion that under the present law, it does not have the authority to sell or dispose of the trees and timber accumulated from such activity.
The General Assembly has provided a method and manner in which unserviceable public property may be sold or otherwise disposed of.

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Section 91-804 of the Code of Georgia 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 of the Code of Georgia provides:
"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 Dyer et al. v. Martin et al., 132 Ga. 445, and the case of Trapnell et al. v. Candler County et al., 146 Ga. 617, the Supreme Court of Georgia in construing the above quoted Code Sections held:
"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."
If the Division of State Parks, in the exercise of its duties in operating and maintaining the State Parks and recreational areas under its jurisdiction, deems it advisable for the future growth and development of the trees and forest areas within the State Parks and recreational areas and to assure greater reproduction and continuous growth of the desirable and valuable stands or species of trees or the need for expanding recreational facilities should harvest within recognized and standard methods of forestry control, mature and over-mature timber, diseased trees, crooked trees, undesirable species, deformed trees or thinning of crowded stands, and then would not have need or use for such trees or timber or have the facilities for converting it into useable material for State Park purposes, it would be my opinion that such facts should be brought to your attention in writing for a determination under the above cited authorities, if, in fact, such harvested forest products are unserviceable and can not be beneficially or advantageously used for park purposes under all of the circumstances.
In the event that you, as Governor, acting upon the information furnished you, should determine that such harvested forest products are unserviceable for park purposes and can not be beneficially or advantageously used for park purposes under all the circumstances, you would be authorized to direct such forest products to be sold or otherwise disposed of under such restrictions and conditions which you may deem advisable for the best interest and protection of the State, and the funds derived therefrom paid into the State treasury.
Under Section 43-110 of the 1933 Code, Annotated Pocket Supplement, the Governor as Commissioner of Conservation and Chief Executive officer of the Division of Natural Resources is vested with the care of the State Parks and recreational areas owned by the State, and the Division of State Parks, Historical Sites and Monuments is a division under the Division of Natural Resources. Under this authority you may desire to request the Director of the Georgia Forestry Commission to act in an advisory capacity to the Division of State Parks where there is anticipated the removing of any trees or timber within a park or recreational area under the jurisdiction of the Division of State Parks to assure the use of standard and sound forestry practices and management in harvesting the forest products therefrom.

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FORESTRY AND GEOLOGY-State Parks The Department of State Parks is not responsible for or authorized to pay a medical bill of a person injured in a swimming pool operated by the Department.
October 4, 1951
Honorable John M. Mann Assistant Director Department of State Parks
OFFICIAL OPINION FACTS:
A young girl visited the Franklin D. Roosevelt State Park near Chipley, Georgia, which is operated by the Department of State Parks of the State of Georgia, for the purpose of swimming in the swimming pool provided for the general public at this Park. While using this pool, the young girl cut her foot on some glass particles on the bottom of the pool. She required medical treatment to the extent of $17.30, for which a bill had been rendered by the attending physician to the mother of the young girl. The mother of this child had requested the Department of State Parks to pay the medical bill.
QUESTION: Is the Department of State Parks responsible for and authorized to pay a
medical bill of a person injured in the swimming pool at the Franklin D. Roosevelt State Park?
ANSWER: In an opinion to Honorable B. E. Thrasher on August 26, 1947 (Opinions of
the Attorney General, 1945-1947, pp. 632-638), the subject of liability or nonliability of the State of Georgia for damages resulting from negligence or other tortious acts or conduct of its employees, agents and officials in acting in their official capacity of employment is very elaborately and thoroughly discussed and numerous decisions of the Supreme Court of Georgia are cited. In this opinion I held that 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. Pertinent parts of this opinion to the question under consideration are:
"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 Government 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 of the State 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 employees of the State. The only instances where the people of the State have seen fit, acting through their representatives, to subject themselves to such liability is for damages which occur on a bridge or the approach necessary for the use of the bridge. Even then the State cannot be sued directly ..."
"From the above decisions, and others which could be cited, it clearly appears that there is no provisions 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."
"On March 13, 1946, I rendered an opinion to the Governor wherein I held that

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the State could not pay a person who had been injured by reason of the negligence of an employee."
"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 themselves established, and that which they have established through their Representatives as provided for under our State Constitution."
It is my opinion, in view of the fact that the General Assembly has never seen fit to provide that the State would be liable to persons who were injured or damaged by reason of the negligence of the employees, agents or officials of the Department of State Parks, that the Department of State Parks would not be legally liable for or authorized to pay a medical bill of a person injured while swimming in the pool at Franklin D. Roosevelt State Park.
FORESTRY AND GEOLOGY-State Parks The Department of State Parks is not liable for damages incurred by another vehicle involved in a collision with a truck operated by an employee of said Department on official business.
October 30, 1951 Mr. J. N. Mann Assistant Director Department of State Parks
OFFICIAL OPINION FACTS:
A truck operated by the Department of State Parks was damaged in the amount of five hundred (500.00) dollars in a collision with two other vehicles. The driver of the truck, who was an employee of the Department of State Parks and who was acting within the scope of his employment at the time of the collision, admitted to the police officials that he was at fault in the accident. The employee likewise received lacerations of the body and incurred medical expenses. The amount of damage to the other vehicles is not known at the present time. QUESTION:
Is the Department of State Parks liable for damages incurred by another motor vehicle involved in a collision with a truck operated by an employee of ~aid department on official business ? ANSWER:
The point raised is fully answered by the appellate decisions of the Supreme Court of Georgia. In the case of Tounsel v. State Highway Department, 180 Ga. 112, the Court held that the State of Georgia is not liable for torts unless made so by statute. The laws of Georgia creating the Department of State Parks do not provide for such liability on the part of the State.
The legal status of the Department of State Parks, being a State political subdivision, somewhat akin to that of a county in Georgia. In the case of City of Monroe v. Flynt, 80 Ga. 489, it is stated:
"The liability of a county to be sued for damages is a statutory liability. There is no liability on the county for any cause whatever except such as created by statute. Counties are not liable at common law; and it is for the reason that the several counties of the State are political divisions, exercising a part of the

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sovereign power of the State; and they can not be sued except where it is so provided by statute."
Also, you will notice in the case of Ramsey v. Hamilton, 181 Ga. 365, it was held that the State can not be sued without its consent.
Therefore, it is my opinion that the State of Georgia, nor the State Division of Conservation, nor the Department of State Parks can be sued for, or held responsible for damages resulting from the accident referred to above.
FORESTRY AND GEOLOGY-State Parks The lessee of the Jekyll Island State Park is not indebted to the State of Georgia for supplies used by the lessee during the term of the lease.
November 20, 1951
Honorable B. E. Thrasher, Jr. State Auditor
OFFICIAL OPINION FACTS:
The State of Georgia entered into a lease with Barney B. Whitaker for the Jekyll Island State Park. The State Parks Department at the time of the execution of the lease was operating this park and there was on hand a supply of fuel oil, food and other items which were being used in the operation of the park; i.e., consumed or sold. An inventory was taken of these items at cost price to the State and the inventory amounted to $4,916.99, and these items were turned over to Mr. Whitaker by the State Parks Department as provided under the lease. At the close of the lease with Mr. Whitaker, an inventory of these particular items showed the amount of $464.41 remaining.
QUESTION: Under the lease, is Mr. Whitaker, the lessee, indebted to the State of Georgia
for the difference between the original inventory of supplies and the amount of supplies he had on hand at the termination of the lease? OPINION:
The pertinent paragraphs of the contract entered into between Barney B. Whitaker, party of the first part, and the State of Georgia, party of the second part, are as follows:
"It is further agreed between the parties hereto that the said party of the first part will supply all personnel, supplies and equipment necessary for the operation of the above named facilities.
"It is further agreed between the parties hereto that said party of the first part shall assume all obligations in connection with the operation of all facilities that may be undertaken by, or required of, the party of the first part hereunder.
"It is further agreed and understood between the parties hereto that all hotel, housing, rooming and service facilities, equipment and supplies now owned by the State on said Jekyll Island may be used by the party of the first part without charge therefor except as herein provided.
"It is further agreed and understood between the parties hereto that the party of the first part shall acknowledge receipt of the furniture, fixtures, equipment and supplies by a signed inventory approved by the party of the second part and a copy of same shall be filed with the State Auditor, Supervisor of Purchases and the Director of the Parks Department.
It is further agreed and understood between the parties hereto that the party of the first part shall maintain the properties inventory and equipment against loss or damage, normal wear and tear and fire and wind storm excepted,

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and the cost of replacement shall be considered as an operating expense of the facilities; provided, the first party shall not be authorized to dispose of any of said properties, inventory and equipment."
Of course, the only part of the contract which is involved in this discussion is with reference to supplies, and these supplies were obviously expendable and usable, being fuel oil, food, and other such salable or perishable items.
From a careful reading of the lease, it is readily seen that the lessee was required to furnish all supplies needed for the operation of the facilities at the Park after the execution of the lease and the taking of possession by the lessee, and that the State of Georgia could not be called upon for any assistance or aid in that respect. The question here is not with reference to supplies in general or necessary supplies used in the operation of the Park after the execution of the lease and the lessee taking possession, but is restricted solely to the supplies which were delivered to and turned over to the lessee at the time of the inventory.
In my opinion, there is some ambiguity in paragraph three quoted above, for therein it is agreed and understood that all supplies owned by the State on Jekyll Island may be used by the party of the first part without charge therefor except as herein provided. The ambiguity revolves around the word "used." How could fuel oil and food be "used" except to consume, expend or sell same? So it is apparent that the word must be considered in its natural meaning, and that the lessee was thus authorized to consume, expend or sell same. But we must go further than that in arriving at the intentions of the parties, for the word "used" was also employed to designate the functions of the lessee relative to the hotel facilities, equipment, etc., and the word "used" no longer means to consume, expend, or sell, but rather "to have the use of." It is also apparent that the word "used" in this paragraph when considered in its natural meaning relative to the hotel facilities and equipment means "to have the use of" during the term of the lease.
In analyzing this lease contract, I believe we must be guided by the rule of law found in Code Section 20-704 of the 1933 Code of Georgia, paragraph 4, as follows:
"4. The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part." and the following rules of law:
The Georgia Court of Appeals in the case of Empire Mills Company v. Burrell Engineering and Construction Company, 18 Ga. App. 253, stated the following rule:
"In construing every contract it is necessary to look to the purpose intended, and where two constructions are possible, one unreasonable and the other reasonable, to give to the instrument the reasonable construction which would serve to put into effect the evident purpose of the agreement."
The Georgia Court of Appeals in the case of Whitney v. Hagan, 65 Ga. App. 849, 851, stated the following rule:
"... it being a cardinal rule in the construction of contracts that in the event of an irreconcilable conflict the preceding paragraph prevails."
With these authorities as a guide and gauge, we find in paragraph four quoted above that the supplies were to be inventoried along with equipment, fixtures, etc., and in paragraph five that the "properties inventory and equipment" shall be maintained and not disposed of.
At first glance, there would appear to be an irreconcilable conflict here, for the supplies were perishable or expendable items such as food and fuel oil, and

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it certainly could not be determined by any rule of reason that it was the intention of the parties for the lessee to accept delivery of the supplies and yet be compelled not to dispose of them. It can not be inferred from the provisions of this paragraph that the State intended for the lessee to accept delivery of such perishable supplies as food and fuel oil, which the State Parks Department was using and consuming daily in its operation of the leased facilities, and keep them during the whole period of the lease and return them at the expiration thereof. On the other hand, it could be said that if the State intended for the lessee to use and consume the supplies in question, why should they have been inventoried at all? It is not entirely clear why such an item as food and other perishable supplies would be inventoried. However, it is reasonable to assume that it was for the purpose of keeping the records of the State Parks Department accurate as to the expenditures and disposal of funds made available to it by the Budget Bureau.
It will be noted that in paragraph five no mention is made specifically to supplies as is referred to in paragraphs one and two.
This omission construed in connection with paragraph 2 strengthens the interpretation that the lessee was authorized to use and consume the supplies in question. It must also be borne in mind that the proviso contained in paragraph 3 "except as herein provided" has application only to the restrictions contained in paragraph 5 wherein the word "supplies" is entirely omitted.
I reach the conclusion that under the terms of the lease contract, the lessee was authorized to use or consume the perishable supplies without charge as provided in paragraph 3 in question and that he was required to maintain all other properties inventory and equipment against loss or damage, normal wear and tear and fire and wind storm excepted, as provided under paragraph five in question.
Therefore, it is my opinion that the lessee, Mr. Whitaker, is not" indebted to the State Parks Department for the difference between the original inventory of perishable supplies such as food and fuel oil and the amount of such supplies he had on hand at the termination of the lease.
GAME AND FISH-Game and Fish Commission The Game and Fish Commission is without authority to promulgate rules and regulations prohibiting the sale of fresh water fish.
February 20, 1951
Honorable Hamilton Ralls Director, State Game and Fish Commission
OFFICIAL OPINION REQUEST:
An official opinion on the law to regulate the sale of fresh water game fish. LAW:
Code Section 45-502 of the Annotated Code of Georgia, 1933 reads as follows: "It shall be a misdemeanor to sell or purchase fresh water fish during the spawning season of April 15 to June 1st."
The above-quoted Code Section is the only statute dealing with the purchase and sale of fresh water fish and prohibits the sale of fresh water fish from April 15 to June 1 of each year.
Code Section 45-146, Pocket Supplement of the Annotated Code of Georgia, 1933 reads as follows:
"The Commission shall have power to fix bag limits and to fix open and closed seasons, on a State-wide, regional or local basis, as they may find to be appropri-

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ate, and to regulate the manner and method of taking, transporting, storing and using birds, game, fur-bearing animals, fish, shellfish, crustaceans, reptiles and amphibians, by rules and regulations: Provided, that the Commission shall post at the courthouse door of the county or counties that will be affected a complete copy of such rule or regulation certified by the chairman of the Commission and also file an additional certified copy thereof in the office of the ordinary of the county or counties affected, at least 30 days before the effective date of such rule or regulation." OPINION:
The power of the Game and Fish Commission to promulgate rules and regulations as to the sale of fresh water game fish is not given to them by the abovequoted Code Section. Therefore, the Game and Fish Commission is without authority to promulgate rules and regulations prohibiting the sale of fresh water game fish.

GAME AND FISH-Licenses A person under the age of 16 is not required to obtain a hunting or fishing license.

Honorable Fulton Lovell, Director Game and Fish Commission

Apri117, 1951

QUESTION:

OFFICIAL OPINION

Does the law require a person under the age of 16 to procure a hunting and fishing license ?

ANSWER:

Georgia Laws, 1951, page 157, and particularly Section 9a on page 173 and 174, provides as follows:

"Be it further enacted by the authority aforesaid that a license authorizing a resident of this State to hunt and fish throughout this State shall be issued

upon the payment of a fee of $1.25 annually. Provided, that, before any person shall be entitled to purchase a resident hunting and fishing license, he shall have been a bona fide resident of the State of Georgia for a period of six months prior to the date such license is applied for; Provided, further, that nothing herein shall prevent a landowner or his tenants and their families, with the landowner's consent, from hunting or fishing on his own land, or ponds or other waters, without a license. Such license shall be procured from the Director of the Game and Fish Commission. No resident of this State shall fish in any of the waters of this State by means of any artificial bait commonly known as plugs, wooden minnows, live minnows, flies, dabblers, spinners, or any other like bait or lure whether in the county of his residence or in any other county of the State without first procuring from the Director of Game and Fish Commission the license hereinabove referred to. No resident of this State shall fish in any way or by any means in any of said waters of this State other than that of the county of his residence without first procuring from the Director of Game and Fish Commission the license hereinabove referred to. Provided, however, that no person under age of 16 years shall be required to buy the license created under this Act. Seiners and netters shall pay one dollar and twenty-five cents ($1.25) annually, as lure fishermen. Provided, further, that no license shall be required to fish with hook and line in Spring Creek from the Miller County line on the north to the point

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where said creek empties into Flint River on the south, as provided by Act approved February 25, 1949, (Ga. Laws, 1949, p. 1361)."
It is my opinion that a person under the age of 16 is not required to obtain hunting and fishing licenses, being exempt under the above provisions of law.

GAME AND FISH-Wild Animals (Unofficial) Any deposit made by wild animals, including bees, on realty shall belong to the owner of such realty. January 23, 1951
Mr. Bill Ross This will acknowledge receipt of your letter dated January 15, 1951, in which
you inquire if a person would be permitted to cut a tree containing wild honey and taking the bees without the permission of the owner of the land on which the tree is situated.
Code Section 85-1704 of the Annotated Code of Georgia, 1933, reads as follows: "Any deposit made by wild animals on realty shall belong to the owner; thus honey deposited by bees in a tree shall belong to the owner of the tree, though the bees may be hived by another; so the eggs and young birds or the increase of animals, so long as they remain unable to leave the land, shall belong to the owner." I do not think that under the above quoted Code Section you could go upon the land of any person and cut a tree containing wild bees and honey and take the same without first having the permission and consent of the owner of the land upon which the tree is situated.

GENERAL ASSEMBLY-Immunity (Unofficial) The members of the General Assembly are immune from suit for anything spoken in debate in either House. July 6, 1951
Mr. Harvey Folks Zimand This will acknowledge receipt of your letter in which you request information
regarding legislation in this State dealing with immunity from libel action of statements made in legislative b6dies.
Article 3, Section 7, Paragraph 3 of the Georgia Constitution of 1945 (Code Section 2-1903) reads as follows:
"The members of both Houses shall be free from arrest during their attendance on the General Assembly, and in going thereto, or returning therefrom, except for treason, felony, larceny, or breach of the peace; and no member shall be liable to answer in any other place for anything spoken in debate in either House."

GENERAL ASSEMBLY-Legislation There is nothing which prohibits the General Assembly from amending an Act in the same session in which it was passed.

Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION

May 4 ,1951

QUESTION: Can an Act passed at the 1951 session of the General Assembly be amended
at the adjourned portion of that same session to be held in 1952?

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ANSWER: I have been unable to find any law, constitutional or statutory, which pro-
hibits the General Assembly from amending an act in the same session in which it was passed. It is probable that doubt has arisen on this point due to the provisions of Article 3, Section 7, Paragraph 13 of the Constitution (Code Section 2-1913) which provides that no bill which shall have been rejected by either House shall be again proposed during the same session under the same or any other title without the consent of two-thirds of the House by which the same was rejected. This provision, however, has no effect on the question involved.
GENERAL ASSEMBLY-Members A member of the General Assembly is eligible to accept employment with any department, board, bureau, or other State agency in the capacity of an employee.
April 17, 1951
Honorable Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION QUESTION:
Is a member of the General Assembly eligible to accept employment as an employee in any division of the State Department of Revenue?
ANSWER: On July 28, 1947 (Opinions of the Attorney General, 1945-47, p. 350) I issued
an opinion to Honorable F. H. Rayfield, Chairman of the Veterans Education Council, in which I held that a member of the State Senate was eligible to serve as Director of the Veterans Education Council for the reason that such Director was an employee of the Veterans Education Council.
In this opinion I pointed out that prior to 1935 the statutes of Georgia provided that no member of the General Assembly would, 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. I pointed out that this law was repealed by the General Assembly (Georgia Laws 1935, p. 121); the only reasonable interpretation for the action of the General Assembly being that it desired to remove any prohibition against a member of the General Assembly accepting employment with a State department, board, bureau, or other State agency in the capacity of an employee.
I held that since the General Assembly of 1935 saw fit to abolish the inability of members of the General Assembly to be employed by boards, bureaus and other State agencies, the State Senator involved was eligible to hold the employment as Director of the Veterans Education Council.
There is, as was pointed out in this opinion, a difference between a member of the General Assembly holding a civil office created by statute and a member of the General Assembly being merely an employee of a department or agency of the State Government.
Following my opinion as above cited, I reach the conclusion that a member of the General Assembly of the State of Georgia would be eligible to accept employment with any department, board, bureau or other state agency in the capacity of an employee thereof; that such member would not be eligible to hold a civil office by appointment of the Governor or General Assembly, such office being established by law.

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GEORGIA COMMISSION ON ALCOHOLISM-Eligibility The -chairman or any other member of the Commission is prohibited from holding the office of Executive Director of the Commission while serving as a member.

Honorable Harold W. McRae Secretary, Georgia Commission on Alcoholism

June 6, 1951

OFFICIAL OPINION QUESTION:
Can the chairman or any other member of the Georgia Commission on Alcoholism also hold the office of Executive Director or Acting Executive Director of the Georgia Commission on Alcoholism ?
LAW: Section 6 of the Georgia Commission on Alcoholism Act (Georgia Laws, 1951,
p. 806-815) provides in part: "The commission may appoint from outside its number, and may remove, an
executive director whose duties will be to supervise the business and financial affairs, and to cooperate with courts, hospitals, and clinics, social agencies, educational and research organizations, public health and police authorities, and members of the general public in carrying into effect the provisions of this Act. . .." ANSWER:
Under the above cited provision of the 1951 Act it is my considered opinion that the chairman or any other member of the Georgia Commission on Alcoholism is prohibited from holding the office of Executive Director or Acting Executive Director of the Georgia Commission on Alcoholism while serving in the capacity of chairman or member of said commission.

GEORGIA COMMISSION ON ALCOHOLISM-Per Diem and Travel Expenses The Commission is restricted to 24 days in each year for per diem allowances, and no travel expenses may be paid except for travel to meetings of the board.

Mr. Paul H. Fraser Chairman, Georgia Commission on Alcoholism

June 12, 1951

OFFICIAL OPINION
QUESTIONS: (1) Can any one or more of the Commissioners travel, with expenses paid, except to and from a meeting of the Commission? (2) Can a member, or the Commission as a whole, travel to places outside of Georgia and receive per diem or expenses? (3) Can one or more Commission members travel and obtain expense payments for services performed other than at Commission meetings? (4) Is there any other provision in the Act authorizing payment of any travel expenses?
ANSWER: In order to arrive at the answers to your questions it is necessary to review
the pertinent provisions of the 1951 Act creating the Georgia Commission on Alcoholism, found in the Acts of 1951, pages 806-815.
Section 5 of this Act relating to the meetings of the Commission and per diem pay provides as follows:
"The Commission shall meet quarterly and at such other times as may be

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necessary for the performance of their duties, not to exceed twenty-four (24) days in all in any one year. The members shall receive ten dollars ($10.00) per diem plus their actual and necessary expenses in connection with their attendance at such meetings. Commission meetings may be held at the site of any of the commission's facilities or at the State Capitol, as the commission may desire. Four members of the commission shall constitute a quorum for the transaction of business."
It is clear from the language of the above provisions of the Act that it was the intention of the General Assembly to require the commission to meet quarterly and at such other times as the commission might deem necessary, not to exceed 24 days in each year, including the quarterly meetings, for the performance of their duties as prescribed in the Act creating the commission.
It is also clear that it was the intention of the General Assembly to restrict the meeting places of the commission to its occupied facilities or at the State Capitol in Atlanta. From the language of Section 5 it is also clear that it was the intention of the General Assembly to restrict the transaction of the board's duties and actions to the places and times specified in the Act.
A review of the Acts creating the various boards and commissions of the State discloses that it has been the general policy of the General Assembly to restrict boards and commissions, insofar as per diem and travel expense allowances are concerned, to the actual meetings of the board and to and from such meetings. There are several exceptions where the General Assembly has seen fit to provide in the Acts creating the boards or commissions authority to incur travel expenses and per diem outside of the regular board or commission meetings and for traveling beyond the borders of the State on official business.
From the study I have made of the Act creating the Georgia Commission on Alcoholism, I am unable to find any authority which would authorize any one or more of the commissioners of the Georgia Commission on Alcoholism to travel with expenses paid to any place except to meetings of the board as provided in said Act, either at the State Capitol or one of the commission's facilities actually in existence.
Specifically and individually answering each of your questions, it is my opinion that Questions 1, 2 and 3 are answered in the negative and as to Question 4, it is my view that there are no other provisions in said Act relating to travel expenses except those set forth in Section 5 relating to meetings of the board.
Your attention is called to Section 6 of the Act creating the Georgia Commission on Alcoholism, which authorizes the commission to appoint from outside its number an executive director whose duties shall be to supervise the business and financial affairs, and to cooperate with courts, hospitals, and clinics, social agencies, educational and research organizations, public health and police authorities, and members of the general public in carrying into effect the provisions of the Act creating the Georgia Commission on Alcoholism. It is my view that the commission would be authorized by appropriate resolution, provided funds were actually on hand by approval of the State Budget Bureau, to direct this official to travel within and without the State of Georgia on official business for the purpose of carrying out the provisions of said Act and that this employee of the State would be entitled to reasonable and actual expenses as provided under budgetary rules and regulations promulgated by the State Budget Bureau. This would also apply to any other employee of the Georgia Commission on Alcoholism which the commission may be authorized to employ or appoint.
Your consideration is also directed to the provisions of Section 40-305 of the Code of Georgia which authorizes the Governor to engage the services of any

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competent person for the discharge of any of the duties provided by law and essential to the interest of the State. Under this authority, the Governor, if he deemed it advisable and necessary, would be authorized to appoint such members of the commission by executive order to make investigation of facilities beyond the boundaries of the State and to obtain information necessary for the establishment of facilities for the Georgia Commission on Alcoholism in this State. Such travel and expenses would be limited to such amounts and time as in the Governor's discretion may be sufficient for such purpose.
GEORGIA PORTS AUTHORITY-Purchases The Georgia Ports Authority may purchase a passenger-carrying automobile, but not through the State Supervisor of Purchases nor with State funds.
January 4, 1951
Honorable B. B. George Supervisor of Purchases
OFFICIAL OPINION FACTS:
Written request was made to the State Supervisor of Purchases by the Georgia Ports Authority on December 19, 1950 for the purchase of one 1950 Model Buick Roadmaster, four-door Sedan automobile. The source of the funds from which it is proposed to purchase such automobile is not stated in the request.
QUESTION: Does the Supervisor of Purchases of the State of Georgia have the authority
to purchase a passenger-carrying automobile for the Georgia Ports Authority?
LAW: Section 40-2001 of the 1933 Annotated Code of Georgia relating to the pur-
chase of passenger automobiles with State funds provides:
"No funds appropriated to any department, institution, board, bureau, or agency of this State shall be used for the purchase of any passenger-carrying automobile whatsoever, and it shall be unlawful to expend any funds appropriated to any such department, institution, board, bureau, or agency or any State funds otherwise coming into the possession of any such department, institution, board, bureau, or agency for the purchase of any passenger-carrying automobile, except one passenger automobile and motorcycles for use of the Governor. Nothing in this law contained shall affect or relate to trucks, tractors, or trailers."
Section 45 of the General Appropriations Act of 1949 (Georgia Laws, 1949, page 1517) provides:
"Section 45. State Ports Authority. For cost of operating_______________ $40,000.00"
OPINION: Under the provisions of the above cited statutes, the State Supervisor of
Purchases would not be authorized to issue a purchase order for a passengercarrying automobile to be purchased by the Georgia Ports Authority with funds appropriated from the general treasury of the State.
If the funds to be used for such purchase are not funds derived from the State of Georgia, then the State Supervisor of Purchases would not be authorized to issue a purchase order since his duties are restricted to purchases involving the expenditure of State funds. In such case the purchase should be made by the proper authority of the Ports Authority without making requisition through the State Supervisor of Purchases.

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HOUSING AUTHORITIES-Members (Unofficial) Commissioners or employees of a housing authority are prohibited from having any interest in any contract for materials or services furnished to any housing project.
August 22, 1951
Mr. E. C. Bearden, Chairman Marietta Housing Authority
I sincerely regret that I have been so long delayed in answering your request but my duties have called me out of the City and my assistant to whom this research problem was assigned has been on military duty the past few weeks.
YC>u ask whether or not sale of maintenance supplies and services for existing projects are prohibited by Section 99-1113 of the Georgia Code of 1933, Annotated Supplement, or if this section applies only to new constructions or new projects.
Section 99-1113 provides: "No commissioner or employee of an authority shall acquire any interest direct or indirect in any housing project or in any property included or planned to be included in any project, nor shall he have any interest direct or indirect in any contract or proposed contract for materials or services to be furnished or used in connection with any housing ,project. If any commissioner or employee of an authority owns or controls an interest direct or indirect in any property included or planned to be included in any housing project, he immediately shall disclose the same in writing to the authority and such disclosure shall be entered upon the minutes of the authority. Failure so to disclose such interest shall constitute misconduct in office." (Emphasis supplied.) It is my opinion that this language indicates beyond question that materials or services to be furnished or used in connection with any housing project include those so furnished or used on present contracts or future contracts.
HUSBAND AND WIFE-Marriages (Unofficial) There is no provision of the law requiring a male to furnish his parents' consent to his marriage~ however a female under 18 years of age must furnish such consent.
October 1, 1951 Mr. Arthur Raymond
I am in receipt of your letter of September 21, in which you request that I clarify certain information furnished you for publication in The World Almanac for 1952.
Your letter states that in certain information sent you, there was a statement that a male may marry without the consent of his parents at the age of eighteen and you wish to know that if this is correct, when did this law take effect. It seems that your records have always shown the male must be twenty-one years old before he can marry without his parents' consent. I do not know where you originally received your information, however I will quote to you the pertinent provisions of the Georgia Code on this matter.
Section 53-204 of the 1933 Annotated Code of Georgia states: "In cases where the parties applying for a license shall not'have reached the age of 21 years, their ages to be proved to the ordinary as hereinafter provided, the ordinary immediately upon receiving the application, shall post in his office

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a notice giving the names and residences of the parties applying therefor and the date of the application; except that where the parents or guardian of the female appear in person before the ordinary and consent in w:riting to the issuance of the license, the posting may be dispensed with."
Section 53-205 of the 1933 Annotated Code of Georgia reads as follows:
"In cases in which notice of the application is required to be posted, no license shall be issued earlier than five days following the date of the application therefor, within which five-day period objections to the proposed marriage may be entered; except that in case of an emergency or extraordinary circumstance the ordinary may authorize the license to be issued at any time before the expiration of the five days."
Section 53-206 of the 1933 Annotated Code of Georgia states:
"When the applicant claims that the parties are 21 years of age or over, the ordinary to whom application is made shall satisfy himself that the applicant's contention as to their ages is true. If the ordinary does not know of his own knowledge that both parties for whom a marriage license is sought are 21 years of age, or over, he shall require applicants to furnish birth certificates, or, in lieu thereof, affidavits from at least two persons showing the ages of both parties to be 21 years, or over; and upon failure of applicant to convince the ordinary that both parties are of such age, the ordinary shall post notice of said application for the period of five days, as hereinbefore provided."
Section 53-207 of the 1933 Annotated Code of Georgia reads:
"The ordinary shall inquire as to the ages of all persons for whom marriage licenses are asked; and if there shall be any grounds of suspicion that the female is under the age of 18 years, the ordinary shall refuse to grant the license until the written consent of the parents or guardian, if any, controlling such minor, shall be produced and filed in his office.
Section 53-208 of the 1933 Annotated Code of Georgia, Pocket Part, reads as follows:
"Any ordinary who by himself or clerk shall fail to post in his office the required notice pertaining to the application, or who shall issue a license in violation of the time provision, or who shall knowingly grant a license without the required consent or without proper precaution in inquiring into the question of minority, or who shall issue a license for the marriage of a female to his knowledge domiciled in another county, shall forfeit the sum of $500 for every such act, to be recovered at the suit of the father or mother, if living, and if not, father or mother, the guardian or legal representative of either of such contracting parties: Provided, that under no circumstances shall more than one suit be maintained by the father or mother, guardian or legal representative of either of such contracting parties in connection with any one marriage; and Provided further that no such action shall be brought prior to the expiration of 60 days from the date that such marriage becomes public and no suit hereunder shall be maintained after the expiration of 12 months from date such marriage becomes public. A recovery shall be had against the offending ordinary and his bondsmen, and from such recovery a reasonable attorney's fee, to be fixed by the presiding judge trying the case, shall be paid to the attorney representing the person bringing the suit, and, after the payment of court costs, then one-third of the remainder of said recovery shall be paid to the person bringing the suit and the remaining two-thirds shall be paid to the county educational fund of the county of such ordinary's residence: Provided, that no recovery shall be had for any alleged violation involving marriages in which both parties are more than 18 years of age."

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From the above-quoted sections you can see that there is no requirement whatsoever for the male to furnish any type of consent to be married, assuming, howeve:r, that he is of marriageable age; i.e., seventeen years of age. You can also see that where the female is under the age of eighteen, she must have written consent. You will notice that the last sentence of Section 53-208 states that no recovery can be had against the ordinary where both parties are over the age of eighteen. This provision, along with the provision requiring that the female must have consent if under the age of eighteen, can be used to infer that the male also must have consent if under the age of eighteen. However, as I stated before, there is no provision which requires a male to furnish consent.
From the above Code Sections and discussion, it seems clear to me that the male need not furnish consent to be married.
These Code Sections have been in the law since 1927 and may be found in Georgia Laws, 1927, page 24.
INSURANCE-Charters The Act of 1902 did not continue the corporate existence of insurance companies beyond the fifty-year period for which they are initially chartered under the Act of 1893.
March 12, 1951 Honorable Zack D. Cravey Insurance Commissioner
OFFICIAL OPINION QUESTION:
Whether insurance corporations chartered under the Act of 1893 with corporate rights, powers and privileges granted for a period of fifty years under Section VIII (Georgia Laws, 1893, page 76) are required to renew or revive their charters at the expiration of the said fifty years or whether the Act of 1902 amending Section VIII of the Act of 1893 (Georgia Code, Section 56-212) makes a renewal or reviver unnecessary.
ANSWER: I am of the opinion that charters issued to corporations under the Act of
1893 prior to December 16, 1902, expire at the termination of a period of fifty years.
It is my further opinion that the Act of 1902 (Georgia Laws, 1902, page 52) had the effect of removing the fifty-year limitation upon insurance corporations chartered after 1902. Under the Constitution of 1877, the Legislature was prohibited from chartering insurance corporations. The authority was vested in the Secretary of State to issue corporate charters in accordance with and pursuant to general laws passed by the General Assembly. Therefore, it is my opinion that the Act of 1902 did not, and, in fact, could not continue the corporate existence beyond the fifty-year period for which it was initially chartered and that the Act of 1902 had the effect only of removing the fifty-year limitation upon those corporations issued subsequently thereto.

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INSURANCE-Underwriters 1. A contract whereby an employee receives death benefits is an insurance contract. 2. Any concern writing these contracts for Georgia employees is under the jurisdiction of the Insurance Commissioner. 3. Such type of organization is not exempt from regulation as being a Fraternal Benefit Society. 4. Such organization is subject to all the statutes relating to life insurance underwriters.
May 23, 1951
Honorable Zack D. Cravey Insurance Commissioner
OFFICIAL OPINION FACTS:
By the terms of the proposed trust indenture between the Laundry Workers' International Union and the employers of laundry workers who have entered into a collective bargaining agreement with the Union, the employer agrees to pay to designated trustees a certain sum each month for each employee for the purpose of creating a welfare fund. The contributions thus made by the employer are to be held by trustees, (which are called in the trust indenture the "Social Security
Department of the Union"), and used for several programs designed to benefit
the workers. Among these programs, and the only one with which we are now concerned, is that contained in Article VII, Section 6, of the proposed indenture, which reads as follows:
"Section 6. Death Benefits. 'The Social Security Department' shall pay a minimum death benefit in the sum of $500.00 to the beneficiary or beneficiaries of a deceased covered employee, subject to the following minimum provisions: (a) The deceased employee at the time of his or her death, had been an employee of 'the Employer' for at least six months and was in the unit represented by 'the Union'. The eligibility of such employee for death benefits shall be determined as provided in Section 4 of this Article. (b) That at the time of death the employee, said deceased employee's employer had complied in all respects with the contractual obligations described in Article V hereof. (c) The right to the death benefit shall automatically terminate: 1. Upon the date that the agreement between 'the Employer' and 'the Union'
providing for the contributions to 'the Social Security Department' is terminated. 2. Upon the date that the employee quits his employment or is discharged. 3. Upon the date that the agreed upon employee's 'Employer contributions' has not been paid. (d) The provision set forth in the foregoing section shall be subject to an exception in cases of lay-off, in which event, employees shall be granted a grace period of 30 days before eligibility to death benefits shall be terminated, and such additional grace periods as the Trustees may determine from time to time." I understand that you have been requested by the National Linen Service and by Laundry Workers International Union to determine whether or not operation under this portion of the trust indenture will constitute doing a life insurance business subject to State regulation. QUESTIONS PRESENTED: The questions presented by this problem are four in number, as follows:

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1. Would the execution of Article VII, Section 6, of the proposed trust indenture, above quoted, constitute the doing of a life insurance business?
2. If the answer to question 1 above is in the affirmative, then is the Social Security Department of the Union doing business in Georgia in such a manner as to bring these operations within your jurisdiction as Insurance Commissioner ?
3. Is the type of operation above described exempt from regulation as a Fraternal Benefit Society, or as an Association which admits to membership only persons engaged in one or more crafts or hazardous occupations, in the same or similar lines of business'!
4. If it is determined that this activity constitutes life insurance, and if it is not exempt as an activity of an Association, such as described in paragraph 3, then to what extent is it subject to regulation by you as Insurance Commissioner'!
ANSWER: 1. In the case of South Georgia Funeral Homes, Inc. v. Harrison, 183 Ga.
379, the Supreme Court of Georgia, decided December 10, 1936, that a certain contract for the purchase of funeral merchandise was not life insurance under the definition of life insurance as then contained in the Code of Georgia. This case was instituted by the Insurance Commissioner of the State who there contended that the South Georgia Funeral Homes was violating an injunction prohibiting the selling of somewhat similar contracts found to be insurance contracts in South Georgia Funeral Homes, Inc. v. Harrison, 182 Ga. 60. Immediately after this adverse decision a bill was introduced in the Legislature amending Georgia Code Section 56-901, so as to give a broader definition to life insurance. This bill in due course became law and is now codified as new Section 56-901, Georgia Code Annotated, Cumulative Pocket Parts. The section in its present form reads as follows:
"56-901. Contract of life insurance defined.-A contract of life insurance is one whereby the insurer, for a consideration, assumes an obligation to be performed upon the death of the insured, or upon the death of another in the continuance of whose life the insured has an interest, whether such obligation be one to pay a sum of money, or to perform services, or to furnish goods, wares, or merchandise or other thing of value, and whether the cost or value of the undertaking on the part of the insurer be more or less than the consideration flowing to him. Every person, firm or corporation writing or issuing contracts of life insurance, as defined in this section, shall be deemed to be engaged in the business of life insurance and shall be subject to all of the provisions of the laws of Georgia regulating life insurance companies."
It is to be noted that this definition is about as broad as it could possibly be made. In order that a contract may be classified as life insurance, only three things are necessary:
1. A contract whereby one of the parties undertakes an obligation to pay money, perform services, or furnish any thing of value upon maturity;
2. A consideration; 3. The maturity of the obligation being the event of death of the designated
person or insured. It is also noted that the foregoing section in the last sentence thereof provides that every corporation writing or issuing such contracts are deemed to be engaged in the business of life insurance and are subject to the laws regulating life insurance companies. In the case of Harrison v. Tanner-Poindexter Co., 187 Ga. 678, the Supreme Court recognized that the decision in South Georgia Funeral Homes, Inc. v. Harri-

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son, 183 Ga. 379 "no doubt had much to do with the passage of the act ... approved March 31, 1937", now codified as Section 56-901.
Tested by the rules set out in this definition, the execution of provisions of Article VII, Section 6, of the proposed trust indenture would constitute the "writing" of life insurance. The obligation arises by contract, it is payable on the event of death, and it is supported by a consideration.
2. From the facts available it is not entirely clear where the contract of life insurance is to be executed. The Social Security Department, however, takes the position that the situs of the entire matter is in the State of Indiana since the Social Security Department is physically located in Indiana, the trust funds in question are to be administered in and from the State of Indiana, and all payments and claims will be made by checks issued there.
It is my view that the decision of the Supreme Court of the United States in Palmetto Company v. Conn., 272 U. S. 295, controls this question. There the Chrysler Company, a Michigan corporation, entered into a contract in the State of Michigan with the Palmetto Fire Insurance Company, domiciled in the State of South Carolina, purporting to insure purchasers of Chrysler cars against fire and theft, this coverage to become immediately effective from the date on which the purchaser took delivery. The Insurance Commissioner of Ohio insisted that the sale of automobiles in Ohio by agents of the Chrysler Company rendered the Insurance Company liable for tax. The court held in an opinion by Mr. Justice Holmes that:
"Manifestly there was nothing in the contract between the plaintiff and the Chrysler Sales Corporation, without more, that Ohio could lay hold of, even if it insured property in Ohio. But the contract contemplated and provided for a benefit to third persons if, when, and where they complied with its conditions. When a man bought a car in Ohio, by that act he made effective the agreement of the Company to insure future purchasers, and imposed upon it an obligation that did not exist before. It is true that the obligation arose from a contract made under the law of another State, but the act was done in Ohio and the capacity to do it came from the law of Ohio, so that the cooperation of that law was necessary to the obligation imposed. It would be held in some jurisdictions that the purchaser became party to a contract with the insurance company. By universal consent he at least would become the beneficiary of a contract for his benefit. Whatever technical form may be given to the reasoning, the substance is that by acts done in Ohio the purchaser obtains for himself the advantage of insurance that before that moment did not exist. It does not matter whether his getting it was a large or an inconspicuous feature of his bargain. It was part of it in any event, and we cannot doubt that the lower Court was right in holding that in such circumstances the State could insist upon its right to tax. It would be extravagant to say that the State's general power to deny to the plaintiff the right to enter or remain within it for business unless it paid for these transactions as a part of the price, must be denied upon constitutional grounds."
By parity of reasoning here, we may say that when an employee assumes employment with an employer by virtue of that act, the employee obtains for himself the advantage of insurance that before that moment did not exist. By Section 56-501 of the 1933 Code of Georgia it is provided that any person who receives or collects or transmits any premium insurance or performs any other act or thing in the making or consummating of a contract of insurance, shall be held to be an agent of the company. Section 56-502 further provides certain civil liabilities upon those persons who act as agents of unauthorized companies.
In my opinion, Boseman v. Conn. General Life Insurance Co., 301 U. S. 196, is clearly distinguishable upon its facts. The question there at issue was not

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the right of a State to regulate, but the legality of a contract provisiOn to the effect that the law of the State of Pennsylvania should control in construction of the contract.
I am further of the opinion that nothing decided in Allgeyer v. Louisiana, 165 U, S. 578, or Hunter v. Mutual Reserve, 218 U. S. 573, holds anything contrary to the rule we have announced.
I, therefore, am of the opinion that the second question should be answered in the affirmative. That is, under the proposed trust indenture the Social Security Department of the Union would be engaged in the life insurance business in the State of Georgia.
3. It has been suggested that Section 56-1641 (b) serves to relieve these activities of regulation by the Insurance Company. Chapter 56-16 of the Code provides a comprehensive scheme of operation and regulation of Fraternal Benefit Societies. Under this Chapter it is made easier for Fraternal Benefit Societies to qualify and they are less closely regulated than are conventional insurance companies. Section 56-1601(b) excepts from the operations of that Chapter Associations which admit to membership only persons engaged in one or more crafts or hazardous operation in same or similar lines of business. It is to be noted that the exception is simply from the regulations and provisions of the Chapter dealing with Fraternal Benefit Societies. It does not purport to relieve the Associations described of all supervisory and regulatory laws. Its effect, therefore, is to subject this type of association to the laws applicable to the doing of insurance business by other than Fraternal Benefit Societies.
4. Therefore, in the light of the above, I conclude that it will be necessary for the Social Security Department of the Union to apply for a license in the manner provided in Chapter 56-4 of the 1933 Code, and comply with the other statutes relating to life insurance underwriters.
JEKYLL ISLAND STATE PARK AUTHORITY-Insurance Claims 1. The Jekyll Island State Park Authority is not entitled to receive claim payments made under existing State insurance coverage on the property change. 2. The Governor is required to continue insuring the public buildings on Jekyll Island under the State insurance plan, and the benefits accruing thereunder are payable only to the State of Georgia.
January 5, 1951
Honorable Herman Talmadge Governor, State of Georgia
OFFICIAL OPINION QUESTIONS:
1. "Is Jekyll Island State Park Authority entitled to receive claim payments made under the existing State insurance coverage on Jekyll Island properties for losses incurred after February 13, 1950, the effective date of the Jekyll Authority lease under the Jekyll Authority Act?"
2. "Will it be legal and proper to continue insuring Jekyll property under the general State insurance coverage plan with future losses to be payable to the Jekyll Authority?"
LAW: Section 91-403 of the 1933 Annotated Code of Geo!'gia provides: "The Governor shall keep insured, at one-half their value, all of the public
buildings of the State and the State Library."

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Section 40-305 of the 1933 Annotated Code of Georgia provides as follows: "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 the interests of the State, or necessary, in an emergency, to preserve the property or funds of the State." Under the above cited authorities, it is mandatory upon the Governor of the State to keep insured at one-half of their value all of the public buildings of the State, and they give him general control as to the procedure and handling of such insurance. The Act creating the Jekyll Island State Park Authority (Georgia Laws, 1950, pages 152-162) grants only a lease of the real and personal property on .Jekyll Island for a term of fifty years to the Jekyll Island State Park Authority. The title to both the real and personal property remains in the State of Georgia. The State of Georgia, through the Governor, is the proper party to receive any and all claim payments from insurance covering losses on Jekyll Island which State funds were used to pay premiums. Answering Question 1, it is my opinion that the Jekyll Island State Park Authority is not entitled to receive claim payments made under existing State insurance coverage on Jekyll Island property for losses incurred after February 13, 1950, the effective date of the Jekyll Island Authority lease under the Jekyll Authority Act. Answering Question 2, it is my opinion that it is mandatory upon the Governor to continue insuring the public buildings on Jekyll Island under the general State insurance coverage plan, but it would not be legal and proper for future losses under such insurance coverage to be payable to the Jekyll Island State Park Authority since such losses accrue only to the State of Georgia.
Except where the Executive Department would act itself, there are two methods which the Executive Department could follow in order to handle the problem of replacing buildings destroyed by fire on Jekyll Island. They are: First, the Governor would be authorized under Section 40-305 to appoint an agent to act for the Executive Department in using such funds to replace destroyed buildings. The agent could be the Jekyll Island State Park Authority. Second, the General Assembly could provide an exception to Section 91-403 so as to provide that the property of the State located on Jekyll Island shall be insured by the leasee, and that all claim funds received from losses thereon would be used for the purpose of replacing buildings destroyed by fire or otherwise. If the method of appointing an agent should be adopted, then the agent should be properly bonded for the faithful performance of the duties imposed on such agent.
MUNICIPAL CORPORATIONS-Charters (Unofficial) A Municipality may cease to exist by one of two methods, by an act of the Legislature or by its own volition under Section 69-105.
June 21, 1951 Dr. Ernest Thompson
This will acknowledge receipt of your letter of June 18, 1951, the second paragraph of which reads as follows: "Can an incorporated town lose its charter by failing to elect a mayor and other officers and failing to levy taxes, in other words, by failing to function as a town; or can it lose its charter only by an act of the legislature?"
The General Assembly has the right to grant, amend and repeal municipal charters; therefore a town certainly may lose its charter by an Act of the Legis-

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lature. In 1947 the General Assembly passed an Act to prescribe a method for the surrender of municipal charters. This was codified as section 69-105 of the 1947 Pocket Part of the Annotated Code and reads as follows:
"All incorporated cities and towns in the State of Georgia now existing and any that may be incorporated hereafter are hereby authorized to surrender their corporate charters, when said incorporated city or town has not functioned under the corporate charter for a period of 10 years, by petitioning the superior court of the county in which the incorporated city lies, said petition being made by a majority of the registered voters of the nonfunctioning incorporated city or town, whereupon the judge of the superior court of said county may receive the surrendered corporate charter and by order of the court declare said incorporated city or town to be dissolved.
Any order of any superior court judge dissolving any incorporated city or town within the State of Georgia will be furnished in duplicate to the Secretary of State and shall serve as notice upon the Secretary of State that the city or town has by order of the court been dissolved as an incorporated city or town."
I am of the opinion that the two methods set out above are the only ones by which a municipality may cease to exist.
MUNICIPAL CORPORATIONS-Home Rule 1. Where a special election is called under Section 4 of the Act either by the legislative body on its own motion or after a petition has been filed by thirty per cent (30o/o) of the eligible voters, only those voters who were eligible to participate in the last general election held in the municipality may vote. 2. Where the question under Section 4 is submitted at a general election either by the legislative body on its own motion or after a petition by thirty per cent (30%) of the eligible voters is filed, those voters who are eligible to vote in that general election may vote on the question .
May 2, 1951
Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUESTION:
1. Where a special election is called under Section 4 of the Municipal Home Rule Law, can anyone vote in that election who was not qualified to vote in the preceding general election '/.
2. Where the question under Section 4 is submitted at a regular election, are the voters who are qualified to vote at such regular election qualified to vote on the question, or are only those who were qualified to vote at the preceding general election qualified to vote on the question '/
LAW: Section 4 of the Act reads as follows: "Any municipality may come under the provisions of this Act and retain
its present corporate charter instead of having a new charter framed if the legislative body of the municipality submits to the qualified voters of the municipality the question: 'Shall this municipality come under the provisions of the Municipal Home Rule Law and retain its present charter with the right to amend the same under the terms of said Act'/' and if a majority of those participating at such election vote in the affirmative upon such question. If a petition signed by thirty per cent (30o/o) of the voters of the municipality who were eligible to participate in the last general city election prepared in the manner set forth in

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sub-paragraph (b) of Section 3 is filed asking for the submission of the said question, it shall be mandatory upon the legislative authority to call an election therefor. Such election in either case shall be called and held in the same manner and under the same provisions as set forth in sub-paragraph (b) of Paragraph 3 of this Act, except that no charter commission shall be elected. If a majority of the voters participating in such election favor the affirmative, such city shall have the power to amend its charter in the manner set forth in Section 3 hereof, and it shall also have all of the general powers granted herein to municipalieies who come under the provision of this Act."
Section 3 (b) reads as follows:
"If a petition signed by thirty per cent (30%) of the voters of the municipality who were eligible to participate in the last general city election shall be filed with the municipal clerk, or other official discharging such duties, requesting the submission to the voters of the question, 'Shall a Commission be selected to frame a Charter?', the governing authority of said municipality shall submit the same at the next general election, if a general election is to be held not less than sixty (60) nor more than ninety (90) days from the time of the filing of such petition, otherwise such authority shall submit such question to the qualified voters of such municipality at a special election to be held not more than ninety (90) nor less than sixty (60) days from the time of the filing of the said petition. The municipal clerk, or other official in charge of municipal elections, shall determine the sufficiency of such petition."
Section 8 reads as follows:
"Whenever the term 'qualified voters' is used herein it shall be held to mean voters who were eligible to parti~ipate in the last general election held in the municipality, if the voter is a resident of the municipality, or the last general state election if the voter does not reside in the municipality."
ANSWER:
You will note that the term "qualified voters" is used in some provisions of the above quoted sections and not in others. There are also other sections of the Act in which this is also the case. It is necessary to examine and construe the entire Act in order to arrive at a conclusion on your specific questions and this opinion will also cover these other sections.
The Act provides for several different elections and it would seem desirable to have the same rules apply tn each one in deciding what persons are allowed to vote. However, we find that under the terms of the Act this does not seem to be the case. For example, Section 3 (a) provides that the legislative body of a municipality may by ordinance submit to the voters the question of whether a commission should be elected to frame a charter. Under certain time limits this question could be submitted at the next election; otherwise at a special election. Nowhere in Section 3 (a) is the term "qualified voters" used. In Section 3 (j), which contains the annexation procedure, the term "qualified voters" is used throughout. I cite these examples in order to stress the point that the terms of the Act itself do not provide for uniformity in the various election procedures set out.
Section 4 allows a municipality to come under the provisions of the Act and retain its old charter. This question may be submitted by the legislative body of the city on its own motion. A petititon of thirty per cent (30%) of the eligible voters makes it mandatory upon the legislative body to submit the question. In either event the question may be submitted, within certain time limits, at the next general election; otherwise at a special election. You will note that

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under Section 3(b) when the question there is submitted at the next general election there is no mention of submitting it to the "qualified voters," whereas if the question is submitted at a special election it is expressly provided that it be submitted to the "qualified voters." The first part of Section 4 states that the legislative body shall submit the question there to the "qualified voters." The middle portion of the section deals with submission after a petition of the eligible voters. The latter portion states that the election in either case is to be called and held under the provisions of Section 3 (b). Therefore, if the question under Section 4 is submitted by the legislative body on its own motion at a general election there appears to be a conflict in that the first portion of Section 4 states it must be submitted to the qualified voters and Section 3(b) makes no mention of the term "qualified voters" in that particular instance.
The appellate courts of this State have repeatedly held that the cardinal rule of construction in the interpretation of statutes is to determine the intent of the General Assembly. Therefore it might well be said that this rule should be followed and this Act be interpreted and construed so as to provide uniform procedures regarding all the elections provided for in the Act. However, this is not an ironclad rule that should be followed with utter disregard for all other rules of statutory construction and in fact a study of the appellate cases will show that this rule is followed where the language of the statute is so vague or ambiguous as to lead to absurd or unreasonable results if the literal terms of the Act were followed. I am unable to convince myself that absurd or unreasonable results will follow from a literal interpretation of this Act, even though such a construction might not produce the most desirable results. In fact I am convinced that the same conclusion would be reached under the above mentioned "intention rule" because the intention, if at all possible, should be derived from the language of the Act itself. The very fact that the General Assembly specifically used the term "qualified voters" in some instances and not in others evidences the fact that it intended to do just that. The language of Section 8 also bears out this contention. The first phrase of that section reads: "Whenever the term 'qualified voters' is used herein ...," thereby indicating that that term was not going to be used in all instances. I am of the opinion that I could not state that the General Assembly intended something else.
If I attempted to construe the Act so as to provide for uniformity in all of the various elections, I would be faced with the problem of determining that all questions in all the elections should be submitted either to the "qualified voters" as defined in the Act or to those persons eligible to vote at the time the particular election is held. I am firm in the belief that to do this would be an invasion of the legislative authority. I would be performing a legislative function and, in effect, would be making law rather than construing it. On the one hand, it seems that the questions should be submitted to the "qualified voters" where so provided because the General Assembly specifically used that term and provided a definition for "qualified voters." On the other hand, I would be inclined to disregard that term because in so doing it would enable more citizens to vote in the elections and I would feel that this is what the General Assembly intended. Therefore, I reach the conclusion that the Act should be given a literal interpretation and that, except in the one instance discussed hereinafter, the questions should be submitted to the "qualified voters" where specifically provided and not otherwise. For the reasons above stated I do not believe I could hold otherwise.
This brings us back to the one situation in which there seems to be a slight ambiguity. That situation arises when the legislative body of a municipality on its own motion submits the question under Section 4 at a general election. Here

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I resort to strict statutory construction as the only possible solution. The first portion of Section 4 says that the question should be submitted to the "qualified voters." Later in Section 4 it is provided that the election shall be called and held in the same manner and under the same provisions as set forth in Section 3(b). I have hereinbefore held that when the question is submitted at a general election under 3 (b) it is to be submitted to the voters eligible to vote in that election. Therefore it is my opinion that the latter portion of Section 4, being the last expression of the General Assembly, is controlling over the first portion and the elections should be governed by the provisions of Section 3(b). See Tyler v. Huiet, 199 Ga. 845 at page 8Q0.
In answer to your specific questions, I hold as follows:
(1) Where a special election is called under Section 4 of the Act either by the legislative body on its own motion or after a petition has been filed by thirty per cent (30 o/o) of the eligible voters, only those voters who were eligible to participate in the last general election held in the municipality may vote.
(2) Where the question under Section 4 is submitted at a general election either by the legislative body on its own motion or after a petition by thirty per cent (30 o/o) of the eligible voters is filed, those voters who are eligible to vote in that general election may vote on the question.
It has come to my attention that various city attorneys and other able attorneys are in disagreement as to the construction of the points involved herein. As a consequence, I feel constrained to point out that even though this is an official opinion from the Attorney General to the Governor, due to the subject matter, it is not binding upon the municipalities of this State.

MUNICIPAL CORPORATIONS-Home Rule A Municipal Corporation having Home Rule may annex adjacent territory either under the provisions of the Home Rule Law or under the provisions of Section 69-901 of the Annotated Supplement to the 1933 Code.

Honorable Herman Talmadge Governor of Georgia

July 17, 1951

OFFICIAL OPINION

QUESTION: Can a city which comes under the provisions of the Municipal Home Rule
Law annex adjacent territory under the provisions of Section 69-901 of the Supplement to the 1933 Annotated Code?

ANSWER:
Section 69-901 provides for annexation by ordinance upon the written applications of all of the owners of the land proposed to be annexed. The Home Rule Law provides for annexation upon motion of the municipal governing authority or thirty percent (30%) of the qualified voters of the territory proposed to be annexed, and further provides that an election must be held in such territory and also in the municipality.
I am of the opinion that these two methods do not conflict and that a municipality having home rule could annex adjacent territory under either method. I do not believe that the General Assembly intended to take away the power of annexation under the general law as contained in Section 69-901.

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MUNICIPAL CORPORATIONS-Home Rule (Unofficial) The Home Rule law provision requiring the submission by the charter commission of the new charter within 90 days is mandatory.
October 17, 1951 Mr. J. A. Gregory
This will acknowledge receipt of your letter of October 15, 1951, in which you request my opinion regarding sub-paragraphs (d) and (e) of Section 3 of the Home Rule Law.
You state that a charter commission was elected to submit a new charter for the City of Calhoun to the voters of that municipality but that this commission has been unable to submit a charter within the ninety-day period specified in Section 3 (d).
I am of the opinion that you are correct in your views in that if the charter commission, elected by the people, is unable to submit a charter within ninety days from the date of their election a new charter commission must be elected. It is my view that the provision requiring submission of the charter within ninety days from the date of the election of the commission is mandatory.
MUNICIPAL CORPORATIONS-Jurisdiction over State Property (Unofficial) 1. A municipality may not impose a license tax upon dealers doing business on the property of a State Farmers Market. 2. A municipality has police jurisdiction over the confines of a State Farmers Market.
March 27, 1951 Mr. E. S. Sell, Jr.
This letter is in answer to your recent inquiry in which you have asked my opinion concerning two points: First, whether the City of Macon has a right to impose a license tax on a retail seller of agricultural products doing business on the property of the State Farmers Market in Macon; second, whether the City of Macon has police jurisdiction over the confines of the Farmers Market in Macon.
In answer to your first question, I find from my research that as a general principle of law that public property and the various instrumentalities of government are not subject to taxation. It has been held by our Appellate Courts that the property of the State of Georgia and the instrumentalities of same are exempt from municipal taxation or regulations, in the absence of express legislative authority. City of Atlanta v. State, 181 Ga. 346.
The Georgia State Farmers Market was authorized through the Act of the General Assembly in Georgia Laws 1935. This Act was intended to aid the Georgia farmer in the sale and exchange of his agricultural products. The Act authorized the Commissioner of Agriculture to operate these State Farmers Markets, to make rules and regulations governing the conduct, to collect charges for the use of the Market, and to do other acts provided therein. I believe that we can reasonably conclude that the Farmers Markets are State controlled. Also see the case of Barwich v. Roberts et al. 192 Ga. 783, which held that the activities of the Commissioner of Agriculture pursuant to the Act creating or operating a State Farmers Market are governmental functions.
I feel that the point in question is controlled by the case Newton v. City of Atlanta, 189 Ga. 441, wherein the Supreme Court held with reference to a municipal occupation tax on wholesalers at the State Farmers Market in Atlanta as follows:
"This immunity (from taxation) will extend beyond State-owned businesses

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and instrumentalities to those owned or operated by others on State-owned or State-controlled property for private gain, but for the performance of governmental functions authorized by statute, and in accordance with the rules and regulations imposed by the State authority, since the acts of the municipality against such a business or instrumentality might threaten by taxation to impair the functions of the State which are thus performed."
Therefore, it is my opinion that the City of Macon has no right to impose a license tax on retail sellers of agricultural products at the State Farmers Market in Macon.
With regard to your second inquiry, I find that Code Section 5-210 of the 1933 Code of Georgia provides, as follows:
"5-210. Any such market shall as to its location in any city be subject to any necessary or fair municipal zone laws, fire, or health regulations. This law shall not be construe.f as conferring the right of eminent domain upon the Commissioner of Agriculture."
This Code Section does not, of course, specifically state that the Farmers Markets shall be subject to the criminal ordinances of a municipality, but neither does it exclude the Markets therefrom. So that the question is still open for discussion.
In the case of Davis et al. v. City of Atlanta et al. 206 Ga. 652, the Supreme Court held that private businesses at the State Farmers' Markets, while exempt from occupation taxes, under the authority of the Newton Case, supra, are not converted into public property in order to relieve same from ad valorem taxation. Obviously, this does not answer the question in controversy, but it does state that the businesses conducted are private and not public.
The mere fact that the State of Georgia owns property does not relieve a private business being conducted thereon from municipal police power. For example, the Henry Grady Hotel is certainly subject to the police power of the City of Atlanta.
It is, therefore, my opinion that businesses conducted in the confines of the Farmers Market in Macon are subject to the criminal municipal ordinances of the City of Macon.
MUNICIPAL CORPORATIONS-Officers (Unofficial) Unless the municipal charter prohibits such, a person can hold a county
office and a municipal office.
April 27, 1951
Honorable G. G. Ridgway Your letter of April 23, 1951 has been received. You requested my unofficial
opinion as to whether the Ordinary of your County can also serve as City Councilman of Royston and you also ask if the acts of the Council would be illegal if this man is illegally holding the office of Councilman. My answer is as folows:
Section 89-101 of the Act 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 such pPrson, while holding a commission, shall be valid as the acts of an officer de facto, namely: "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."

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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 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 State offices and that the last quoted section refers to holding County offices. It was held in the case of Long, et 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 neither a county treasurer nor a member of the county board of education were ineligible to hold the office of alderman of a municipal corporation. Therefore, 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. As an answer to your second question, it is obvious that it has no significance since it has been determined that he is legally holding his office.
PENAL INSTITUTIONS-Board of Corrections The whole theme of law on working prisoners is that such work should be confined to public work.
October 16, 1951 Honorable B. E. Thrasher, Jr. State Auditor
OFFICIAL OPINION FACTS:
During the fiscal year ending June 30, 1951, convict labor from the State Penitentiary was used for work on the Reidsville Baptist Church property and the Reidsville Methodist Church property for which the Board of Deacons and the Board of Stewards, respectively, agreed to pay $1.09 per day for each laborer as shown by a letter dated August 31, 1951, to you, from Mr. R. E. Warren, Director of Corrections:
"We are today in receipt of a report from Warden R. P. Balkcom in reference to certain labor performed on the two churches in Reidsville and we would like to submit the number of hours performed by the inmates, the wage rate per hour and the total amount, which we will collect.
"For the Board of Deacons of the Reidsville Baptist Church, 438 man days of labor were performed through June 30th, 1951 at a daily rate of $1.09, for a total of $477.42.
"For the Board of Stewards of the Reidsville Methodist Church through June 30th, 1951, a total of 585 man days of lobar were performed at a rate of $1.09 per man day for a total of $637.65.
"Statements have been rendered to the churches and we are expecting remittances in the near future.
"For your information only inmate labor was used in the construction of annexes to the two churches and no materials were furnished by the Georgia State Prison and the tools used were the property of the churches in question." QUESTIONS:
1. Has any constitutional provision been violated by the working of the convict labor on the church property?
2. Was the convict labor at $1.09 per day used in competition with free labor at the present wage scale of 50c or more per hour, in violation of the law?

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3. Has there been a violation of any other provision of law? 4. If the law has been violated under the facts stated, what is the penalty for such violation? LAW: There apparently has been no violation of the Constitution under the foregoing facts. The nearest thing to such a violation is under Section 2-114 which reads as follows: "No money shall ever be taken from the public Treasury, directly, or indirectly, in aid of any church, sect, or denomination religionists, or of any sectarian institution." The Constitution of 1945 under Section 2-3401 created the Board of Corrections as a constitutional board:
"There shall be a State Board of Corrections composed of five members in charge of the State penal system. The Board shall have such jurisdiction, powers, duties and control of the state penal system and the inmates thereof as shall be provided by law. The Board shall elect a Director of Corrections who shall be the executive officer of the Board. The Board of Corrections shall be appointed by the Governor with the consent of the Senate. The first appointment shall be for terms of one, two, three, four and five years and their successors shall be appointed for terms of five years each. The compensation of the Director and members of the Board shall be fixed by law."
Pursuant to the constitutional provision just above quoted, an Act was approved February 1, 1946, creating a State Board of Corrections, defining the jurisdiction, powers and duties of said Board, which is codified under Sections 77-358 to 77-389. The codifiers made the following statement in a note under Section 77-301:
"The effect of the Act of 1946 on the various prison statutes, enacted since 1933 and codified in this Chapter, is doubtful. All of them may have been repealed by necessary implication on the idea that the Act of 1946 was intended to cover the whole subject-matter. Certainly some of them are duplicated by provisions of the Act of 1946. Others may be modified by that Act and yet others in some respects may be in conflict with it. In view of this uncertainty, it has been deemed best to retain these Acts in this codification."
After a study of the various Acts and provisions of law, it is my opinion that the Act of 1946 is comprehensive as to the control, working, feeding, clothing, treatment, discipline, rehabilitation, training, hospitalization, etc. in accordance, of course, with the sentence of the Court and after being assigned to the Board of Corrections by the Court.
Section 11 of the 1946 Act (Georgia Laws, 1946, pages 46-56) 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, and the Board is hereby given the authority to assign, transfer, and place all such persons in such prisons, public work camps, State Highway camps, penitentiary, hospitals, or other institutions Of confinement located in the State of Georgia and coming under its jurisdiction, as the Board shall deem to be to the best interest of the prisoner, to the State, and to its subdivisions. The Board may adopt rules and regulations for the handling of all prisoners and may delegate its authority to assign same to the Director of Corrections, if the Board deems advisable."

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Section 6 of said Act provides: "The State Board of Corrections is hereby authorized to adopt, establish and promulgate rules and regulations governing the transaction of business of the Penal System of the State by the State Board of Corrections, by the Director of Corrections and the administration of the affairs of the Penal System in the different institutions coming under the authority and supervision of the State Board of Corrections. The State Board of Corrections shall adopt rules governing the assignment, housing, working, feeding, clothing, treatment, discipline, rehabilitation, training and hospitalization of all prisoners coming under its custody. The Board may also adopt rules and regulations governing the conduct of/or the welfare of employees of the State institutions operating under its authority and in the county public works camps and State Highway camps operating under its supervision, and shall also prescribe the working hours and conditions of work for employees in the office of the Director of Corrections and of institutions operating under the authority of the Board." The theory of prison work under the Act is as follows: "Section 16. The theory of prison work shall be based on occupational and vocational training, and not on business conducted for profit or in competition with private enterprise and free labor. The provisions of this Section shall not apply to county public works camps and State Highway camps. "The Supervisor of Purchases and all Departments of the State Government shall purchase from the State Board of Corrections such supplies and materials as may be produced by the different institutions under the authority of the Board. The use of free labor in the production and manufacture of such supplies and materials shall be limited to supervision only." The whole theme of law on working prisoners is confined to public work, though there is no specific provision in the law except as relates to misdemeanor prisoners. There are a number of opinions on the subject of convict labor (several official) in the Opinions of the Attorney General of 1945-47, pages 422-426, which no doubt reach the right conclusions but which contain cited sections of law which, according to my construction, have been repealed. For example, Section 77-201 as follows: "When 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." is in direct conflict with Section 11 of the Act of 1946 as above quoted. While there has been a clear violation of the theory of work for convict labor in working the convicts on the church property at $1.09 per day in competition with free labor, there is no penalty provided for such violation. The Hl46 Act provides no penalties for violation of any of its provisions.
PE'RSONAL PROPERTY-Treasure Trove (Unofficial) There is no law in !Georgia requiring a permit to dig for buried treasure.
August 7, 1951
Mr. L. S. Waddell I am in receipt of your recent letter in which you asked for information
concerning any Georgia law which requires a state permit for persons digging for buried treasure.

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I am prohibited by law from rendering official opinions or giving information to anyone except the Governor of this State and the several State department heads, so that the ensuing remarks are necessarily unofficial.
My research reveals that there is no statute in our Code on the question of treasure trove.
The only Georgia case dealing with the question is the case of Groover vs. Tippins, 51 Ga. App. 47. In this case the court holds:
"Coin, gold and silver plate, or bullion, and similar articles, hidden for safekeeping and forgotten, or remaining undiscovered by reason of the death of the person who hid them, are technically known as treasure trove.
"It is the hiding, and not the losing or abandoning, of property which gives it its characteristic as treasure trove. The title to property imbedded in the soil is in the owner of the land, where such property does not partake of the characteristic of treasure trove; as, in a case where an aerolite has fallen upon the land; it belongs to the owner of the land rather than to the :finder.
"In the absence of statute, the title to treasure trove belongs to the finder, as against all the world except the true owner. The title and right of possession of the finder is not affected by the ownership of the property on which the treasure trove is found."
There seems to be no Georgia law which requires a person to require a permit to search for a buried treasure, or to pay any percentage of the find to the State.
In answering your letter, of course, I have not discussed the question of trespassing which might be involved.
PERSONS-Legal Residence (Unofficial) In order to change ones legal residence there must be an overt act plus intent.
June 7, 1951
Mr. Ray 0. Watts I am in receipt of your letter of May 27, 1951 in which you request informa-
tion as to the requirements of estalishing legal residence in Decatur, Georgia.
In the case of Bush vs. The State, 10 Ga. Appeals 544, Mr. Justice Russell stated: "Laws of citizenship do not result from a change of residence not intended to be permanent . . . There must be either the tacit or explicit intention to change one's domicile before there is a change of legal residence."
It was further stated in the case of Worsham vs. Ligon, 144 Ga. 707 that: "Residence and domicile are not synonomous 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."
From the two above quoted cases it is my belief that if you remove yourself from your present residence to Decatur with the avowed intention to remain in Decatur for a permanent or indefinite time and with the intention of making Decatur your legal residence and do something therein to indicate this, such as renting a room or buying a house or some property, then Decatur will become your legal residence and will remain so until you remove yourself with the intention of making another place your legal residence.

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PRISONS AND PRISONERS-Escaped Prisoners (Unofficial) When a prisoner escapes before he is delivered to the State Board of Corrections, it is the responsibility of the county in which he escaped to return him to custody,

Honorable 0. L. Griner

February 20, 1951

This is in reply to your letter of February 15, 1951 concerning the responsibi-

lity for the return of an escaped prisoner. You state that Issac Norton had been convicted of the crime of assault with intent to murder in Berrien County and had been sentenced in the Superior Court for that offense; that the record in his case had been transmitted to the State authorities; and pending the author-

ities coming for him, he escaped from Berrien County Jail.

You requested that I take this matter up with the Board of Corrections and determine what could be done and advise you. I .have talked with Honorable J. B. Hatchett, Assistant Director of the State Board of Corrections, and he agrees that you have correctly stated the facts in the case. Mr. Hatchett contends that in the case of a prisoner, sentenced in the Superior Court and placed by the

judge in the custody of the sheriff, if the prisoner escapes before he is delivered

to the State Board of Corrections, it would not be the responsibility of the Board

to bear expense of extraditing the prisoner; on the contrary, it would be the duty and responsibility of the county in which the prisoner escaped to return him to custody. It is my information that Issac Norton had never been conveyed to the penitentiary authorities.

The following Code Sections deal with this subject and read as follows: "Section 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 order 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."

"Section 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 immediately thereafter, by mail, of the conviction and sentence, and that the convict is detained in the county jail, or under guard, subject to the order of the superintendent."
"Section 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."

PROFESSIONS, BUSINESSES AND TRADES-Accountants The State Board of Accountancy has authority under the law to reinstate a C. P. A. certificate for a non-resident who was issued a certificate in 1923 and has never practiced accounting in Georgia or renewed his certificate.
October 31, 1951
Honorable R. C. Coleman, Joint Secretary State Examining Boards
OFFICIAL OPINION FACTS:
The Georgia State Board of Accountancy issued a C. P . A. certificate to a

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non-resident in 1923 who has never practiced accounting in Georgia or renewed his certificate. QUESTION:
Would the Georgia State Board of Accountancy be authorized under the law to reinstate the certificate. OPINION:
Section 84-205 of the Code of Georgia of 1933 reads as follows: "84-205. Applications for certification as certified public accountants; fees; regulations; funds allocated to Board.-Each applicant shall pay with his application a fee of $25. The application shall be on a form provided by the Board. The fee shall entitle the applicant to the examination and if found qualified and certified, to a registration card, which shall expire on December 31 of the year in which same is issued. Each certified public accountant shall annually renew his registration card by the payment of a fee of $5 and complying with such regulations as may be prescribed by the Board, not inconsistent with this Chapter. All fees and moneys received by the Board shall be paid to the State Treasury as otherwise provided by law, and same are hereby allocated to said Board, for the purpose of paying the expenses of the Board and the expense incurred in the administration of this Chapter. (Acts 1935, p. 88)." It is therefore my opinion that the Board would be authorized to renew the certificate upon the payment of the fee for the current year.
PROFESSIONS, BUSINESSES AND TRADES-Accountants Question of residence is determined by intent, and intent is a question of fact.
November 1, 1951 Honorable R. C. Coleman, Joint Secretary State Examining Boards
OFFICIAL OPINION FACTS:
Mr. Maurice M. Egan has filed his application with the State Board of Accountancy for C. P. A. certificate in which he claims Georgia as his residence and states that he is now employed in Jacksonville, Florida, and contends that he has never changed his residence from Georgia to Florida, but is in Florida temporarily. QUESTION:
Is Mr. Egan a resident of Georgia? ANSWER:
Section 79-406 of the Code of Georgia of 1933 reads as follows: "79-406. Change of domicile; intention.-The domicile of a person su1 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." (Underscoring supplied). In the case of: John Harkins, plaintiff in error, v. Clement Arnold, next friend, defendant in error 46 Ga. 657 the Court held: "That the questions of domicile was one of fact, under the circumstances, the jury having found in favor of the minors' right to homestead, this Court will not disturb the verdict which is warranted by the evidence." Assuming that Mr. Egan was a resident of IGeorgia prior to his acceptance of employment in Florida, and this assumption being undisputed, it is my opinion that he would be considered a resident of Georgia.

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PROFESSIONS, BUSINESSES AND TRADES-Accountants The Georgia State Board of Accountancy is vested with the authority to issue as an act of "comity", certificates as Certified Public Accountants to applicants who hold valid and unrevoked certificates issued by the State of Alabama.

December 7, 1951

Dr. R. C. Coleman Joint-Secretary

State Examining Boards

FACTS:

OFFICIAL OPINION

The State Board of Accountancy has two applications on file for issuing certificates as Certified Public Accountants to applicants who hold certificates as Certified Public Accountants issued by the State of Alabama.

The Alabama State Board of Accountancy under date of October 27, 1951,

through its chairman, has advised the Georgia State Board of Accountancy that

their Board has the discretionary power to register a Georgia certificate and to

issue to the holder thereof a certificate under which he may practice as a

Certified Public Accountant and use the abbreviation "C. P. A." in Alabama, provided the State of Georgia grants similar privileges to the holders of Alabama

certificates. Since the Georgia statute was enacted authorizing the "granting of similar privileges," the Alabama State Board of Public Accountancy has regis-

tered the certificates of twelve Georgia Certified Public Accountants, one of

whom is now Secretary and Treasurer of the Alabama State Board of Public

Accountancy. The last certificate granted by the Alabama Board was granted

to a Georgia Certified Public Accountant to practice in Alabama and the

Alabama Board has granted more registration certificates to the holders of Georgia certificates than to the holders of certificates of any other states.

The Alabama Board in its letter states its position as follows:

"We are delighted to register Georgia certificates, that we have proved this by registering more Georgia certificates than any other, and that as long as you continue to 'grant similar privileges' we will grant privileges similar to

those which you grant, but that we will not execute an official statement worded

as yours is at this time, because we have no power to do so."

The above statement referred to is a so-called reciprocity agreement which the Alabama Board states that it does not have the legal authority to enter into.

QUESTION: Would the Georgia State Board of Accountancy have the authority to issue

reciprocal certificates to licentiates of Alabama 7 LAW:

Section 5, Title 46, Code of Alabama of 1940 provides:

"(20) Accountant from another state, certificate of registered.-The Alabama State Board of Public Accountancy may, in its discretion, register the certificate

of any certified public accountant under the law of another state, and may issue

to such certified public accountant certificate which will entitle the holder to practice as such public accountant and to use the abbreviation "C. P. A.", in this

state, provided the state issuing the original certificate grants similar privileges to the certified public accountants of this state. The fee for registration shall not

exceed the sum of twenty-five dollars."

In the case of Wright v. Aldridge, 219 Ala. 632, the Supreme Court of

Alabama, in reference to the powers of the Alabama State Board of Public

Accountancy, held:

"The Board of Public Accountancy, created by this and the following sections,

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is of statutol'Y and limited power, and has no powers other than those conferred by statute, the exercise of which can be invoked only in the manner and mode prescribed by statute."
Section 84-209 of the 1933 Annotated Code of Georgia provides: "The Board may in its discretion, without examination, issue certificates as certified public accountants to applicants who hold valid and unrevoked certificates as certified public accountants issued by another State, or political subdivision of the United States, or by or under authority of a foreign country; provided such applicant complies with this law, and the rules of the Board and the certificate held by him was issued after an examination which in the judgment of the Board was the equivalent of the standard established by it; provided further, that such privileges are extended to the State, political subdivision, or foreign country_, originally certifying such applicant to citizens .of this State." ANSWER: In asking the question under consideration, the proposition is raised as to "reciproca.l agreements" between the iGeorgia State Board of Accountancy and the Alabama State Board of Accountancy, and as to whether the Alaabma State Board of Accountancy has the statutory authority to enter into written reciprocal agreement with the State of Georgia. The Alabama Board correctly takes the position that they only have the powers granted to them under the statutes of that State and that they do not have the authority to enter into "reciprocal agreements." The Georgia State Board of Accountancy is in the same legal position. It has only the powers granted to it by the statutes creating the Board and such amendatory statutes enacted thereafter. The Georgia State Board of Accountancy, under Section 84-209 above cited has the authority in its discretion to issue certificates without examination as Certified Public Accountants to applicants who hold valid and unrevoked certificates as Certified Public Accountants issued by another state under the terms and conditions stated therein, pr-ovided that such privileges are extended by the state certifying such applicant to citizens of this State. From the facts stated by the Alabama State Board of Public Accountancy in their letter to the Georgia State Board and their statutory provisions being almost identical with those of Georgia, it is my opinion that the Georgia State Board of Accountancy is vested with the authority and power to issue as an act of "comity," under Section 84-209, certificates as Certified Public Accountants to applicants who hold valid and unrevoked certificates as Certified Public Accountants issued by the State of Alabama.
PROFESSIONS, BUSINESSES AND TRADES-Architects Any person who has been in an active practice of architecture in this State for at least ten years prior to their appointment is eligible for membership on the State Board for the examination and registration for architects.
October 23, 1951 Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION FACTS:
Mr. \Vilfred J. Gregson states that he was an associate architect with the Federal Fish and Wild Life Service in Georgia from August, 1938 to January 1942, when he entered the U. S. Engineers and that in this capacity he was engaged in the practice of architecture in Georgia until October, 1945, with the exception of approximately nine months, when he was stationed in Jacksonville,

345
Florida. He was licensed in the State of Georgia in 1945 and has been engaged in the practice of architecture in Georgia under his license from that date until the present time. He was not required to have a license when in the federal service. QUESTION:
Would Mr. Gregson be eligible to be appointed on the Georgia State Board for the examination and registration of architects? ANSWER:
Section 84-301 of the Annotated Code of !Georgia, 1933, provides as follows: "Any one or a combination of the following practices shall constitute the practice of architecture, namely: T'he planning or supervision of the erection, enlargement or alteration of any building or buildings, or of any appurtenances thereto, or consultation as to planning of same, to be constructed for others or by persons other than himself. A 'building' is any structure consisting of foundations, floors, walls, columns, girders, beams, and roof or a combination of any number of these parts, with or without other parts or appurtenances." (Emphasis supplied). Section 84-304 of the Annotated Code of Georgia, 1933, provides as follows: "The Governor shall appoint a State Board for Examination and Registration of Architects, to be composed of five architects who have been in active practice of architecture in this State for not less than 10 years previous to their appointment. One of the said members shall be appointed to hold office for a period of one year; one for two years; one for three years; one for four years, and one for five years, and thereafter, upon the expiration of the term of office of the person so appointed, the Governor shall appoint a successor to each person whose term of office shall expire, to hold office for five years, and said person so appointed shall have the above specified qualifications. In case a successor shall not be appointed at the expiration of the term of any member, such member shall hold office until his successor has been duly appointed and has qualified. Any vacancy occurring in the membership of said Board shall be filled by the Governor for the unexpired term of such member.'' Assuming that Mr. Gregson practiced architecture during the period of time that he was with the Federal Fish and Wild Life Service, it is my opinion that he is eligible to be appointed on the Georgia State Board for the Examination and Registration of Architects.
PROFESSIONS, BUSINESSES AND TRADES-Board of Medical Examiners (Unofficial) The Board of Medical Examiners has the sole discretion as to whether ~ license will be granted to a person to practice medicine if such person has been convicted of certain offenses.
July 5, 1951
Mr. Frederick A. Moran This is in further reference to your letter of June 20, 1951 to Mr. Henry B.
Mays, of the State Board of Pardons and Paroles, and my reply of July 3, 1951. Your inquiry concerning Mr. Heller's status in this State was would a conviction in the State of New York bar him from becoming a licensed physician in the State of tGeorgia, and if so, would the issuance of a certificate of good conduct to end disability under the New York State Law remove the disability under the Georgia State Law. In order that you may understand the answers to these questions, it will be necessary for me to quote certain provisions of the Georgia Law relating to the licensing of physicians.
Section 84-907 of the Code of Georgia of 1933 provides:

346
"All applicants for a license to practice medicine or for a renewal of any such license which has been revoked shall furnish the Board with evidence of good moral character." (emphasis added).
Section 84-916 of the Code of Georgia of 1933 provides in part: "The Board of Medical Examiners may refuse to grant a license to practice medicine, ... on the following grounds, to-wit: ... conviction of crime involving moral turpitude; ... the procuring or aiding or abetting procuring a criminal abortion; ... " (emphasis added) With these provisions in mind, then the answer to the question of the conviction barring the licensing of Mr. Haller must be. that it is within the discretion of the Board. Similarly it makes no difference if Mr. Haller has a certificate of good conduct or a pardon from the State of New York since it is discretionary with the Board as to the issuance of the license. However, in considering Mr. Haller's case, I am sure that a pardon would carry more weight than a certificate. I say that even with the existence of a pardon, the Board has discretion because of a number of cases which have held, as has your State in Re Attorney, 86 N. Y. 563, that: "Doubtless the effect of the pardon is that, so far as the violation of the criminal law, the offense against the public, is concerned, he is to be looked upon as innocent thereof. The pardon does reach the offense for which he was convicted, and does blot it out, so that he may not now be looked upon as guilty of it; but it cannot wipe out the act that he did, which was adjudged an offense. It was done and will remain a fact for all time." See also Page v. Watson, 192 Sou. 205. For the principle that no one has a vested right to practice medicine free from State regulation and control see 162 Ga 246 at page 257. Also see Page v. Watson, supra, to the effect that the rights of citizenship do not include a right to practice medicine. From the above cases and statutes the only conclusion to be reached is that regardless of a pardon, it is within the discretion of the medical examining board as to whether they will grant a license to a person who wishes to practice medicine.
PROFESS'IONS, BUSINESSES AND TRADES-Chirapractors After the appointment of the first board of Chiropractic Examiners, the Governor is not restricted to appointing not over two members from the same school.
September 4, 1951 Mr. William J. Moore Secretary, Georgia State Board of Chiropractic Examiners
OFFICIAL OPINION FACTS:
Section 84-503 of the Georgia Code provides that the Governor shall appoint five chiropractors, not over two from the same school, as members of the Georgia Board of Chiropractic Examiners. QUESTION:
1. Do the requirements restricting appointments to no more than two from the same school apply only to the membership of the original Board?
2. Do those same requirements also apply to the subsequent annual appointments and appointments to unexpired terms? LAW:
Section 84-502 of the 1933 Annotated Code of Georgia provides: "There is hereby created and established a board to be known by the name

347
and style of the Georgia Board of Chiropractic Examiners. Said Board shall be composed of five practicing chiropractors, who shall be of good moral character, residents of the State, and graduates of chartered chiropractic schools or colleges requiring actual attendance in same, and shall have practiced chiropractic continuously and resided in the State for a period of at least two years."
Section 84-503 of the 1933 Annotated Code of Georgia provides: "The Governor shall appoint five chiropractors, not over two from the same school or college from a list of 10 or more names to be submitted to him by the Georgia Chiropractic Association, to constitute the membership of said Board. Said members shall be so classified by the Governor that the terms of office of two shall expire in one year, two in two years and one in three years from the date of appointment. Annually thereafter the Governor shall appoint to fill vacancies of said Board, licensed practitioners who possess the qualifications specified in section 84-502 to serve for a period of three years, and also shall fill vacancies in said Board caused by death or otherwise as soon as practicable, who shall hold for the unexpired term of the member whose vacancy is being supplied. Before appointing the members of said Board the Governor shall satisfy himself that the appointees are of high character and standing, and possess the other qualifications hereinabove prescribed, and to that end he may appoint an examining board." ANSWER: It is my opmwn that the prov1s1on of the first sentence of Section 84-503, relating to "not over two from the same school", applies only to the first Board appointed under the Acts of 1921, p. 167, and that all further appointments by the Governor, after the original Board, are controlled by the qualifications contained in Section 84-502 of the 1933 Annotated Code of Georgia, i.e., of good moral character, residents of the State, and graduates of chartered chiropractic schools or colleges requiring actual attendance in same, and shall have practiced chiropractic continuously and resided in the State for a period of at least two years.
PROFESSIONS, BUSINESSES AND TRADES-Optometrists The Board of Examiners in Optometry must meet and transact its business in the State Capitol and all its documents must be filed with the JointSecretary of the State Examining Boards.
May 7, 1951 Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUESTION:
Is the Georgia State Board of Examiners in Optometry required by law to meet and transact the business of the Board in the State Capitol, and should all examination papers and documents of this Board be filed with the JointSecretary of the State Examining Boards as public records open for inspection during the usual office hours of such Joint-Secretary?
ANSWER: Under the reorganization act (Acts of 1931, pages 7-35) the offices of the
secretaries of the several examining boards of the State were abolished and the Secretary of State was authorized and directed to appoint one secretary for the several State examining boards, which included the Georgia State Board of Examiners in Optometry.

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Section 84-101 of the 1933 Code of Georgia provides:
"Said secretary shall be designated 'Joint-Secretary, State Examining Boards,' and his office shall be maintained under the supervision of the Secretary of State. The offices of the secretaries for said respective boards are hereby abolished. It shall be the duty of the Joint-Secretary to bring together and keep all records relating to the said several examining boards; to receive all applications for licenses; with the consent of the board concerned, to schedule the time and place for examination; to issue certificates upon authority of the examining board concerned; to collect all fees required by law in connection with licensing of professions, businesses, and trades, and to remit the same to the State Treasurer ... "
Section 84-102 of the 1933 Code of Georgia provides: " ... The Secretary (Joint-Secretary) shall maintain an office in the State Capitol, and all of the meetings of said respective boards shall be held in the Capitol ... "
From analysis of the Act of 1931 and a study of the evils which existed prior to its enactment, I reach the conclusion and it is my opinion that it was the intent of the General Assembly in enacting the 1931 reorganization act, insofar as it applies to State examining boards, to abolish the old system whereby the various boards maintained their own secretary and met in a wide variety of places without any central place for the filing of the minutes and records of th~ various boards, and established in lieu of this old loosely operated system a new system of having one Joint-Secretary for all of the State examining boards and requiring that he maintain his office in the State Capitol and that he shall be the keeper of all the records of the various State examining boards, with such boards required to hold their meetings and transact their business within the State Capitol.
It is my opinion that the General Assembly in using the words "all of the records" intended that the Joint-Secretary of the State examining boards shall be the custodian and keeper of the minutes, every paper, document, communication, file and action of the various State examining boards and that such shall be kept and maintained in his office within the State Capitol.
It is my further considered opinion that the IGeorgia State Board of Examiners in Optometry shall not remove its minutes, examination papers, documents, communications, files or any other type of record from the office of the Joint-Secretary of the State Examining Boards located in the State Capitol; that said Board shall have the full use of such records within the office of the Joint-Secretary but not beyond or outside thereof.
It is my further considered opinion that all applications for examination, all examination papers of each examination given by the Board and the individual grades assigned to each individual examination must be left in the custody and control of the Joint-Secretary of the State Examining Boards and in his office in the State Capitol. Such examination papers are public records and are available and open for inspection by interested persons within the usual office hours maintained by the Joint-Secretary of said State Examining Boards.
It is my further opinion that all examinations and all meetings, both general and special, of the Georgia State Board of Examiners in Optometry must be held and conducted in the State Capitol with the Joint-Secretary present to record the proceedings thereof.

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PROFESSIONS, BUSINESSES AND TRADES-Pharmacists The owner of a drug store is responsible in the event of the violation of the drug laws of this State in reference to the mixing or compounding of drugs for sale.

Mr. P. D. Horkan Chief Drug Inspector Georgia State Board of Pharmacy

November 21, 1951

OFFICIAL OPINION
FACTS: A drug store is owned and operated by a person who is not a licensed and
registered pharmacist. A licensed and registered pharmacist is, however, employed by the owner, though such pharmacist is not on duty from the time of the opening to the closing of the drug store.
QUESTION:
Who is responsible in the event of the violation of the drug laws of this State in reference to the mixing or compounding of drugs for sale?

ANSWER:
Code Section 84-1318, Georgia Annotated Code, Supplement, is as follows:
"It shall be unlawful for any proprietor, owner or manager of any drug store or pharmacy to allow any person in his employ except a registered pharmacist to compound or mix any drugs, medicines, or poisons for sale, except an employee under the immediate supervision of a registered pharmacist. No drugs, medicines or poisons intended for human consumption or use on human beings shall be compounded or mixed for sale except by a registered pharmacist, or an employee or person under the immediate supervision of a registered pharmacist. No registered pharmacist shall have more than one drug store or pharmacy under his supervision. The proprietor, owner or manager of any drug store or pharmacy shall have a registered pharmacist present and available in such drug store or pharmacy at all times during which drugs, medicines or poisons are compounded, or mixed."
From the above Code Section, it is obvious that an owner of any drug store must have a registered pharmacist present at all times in the store when drugs are being compounded or mixed, and that only such pharmacist or an employee under his immediate supervision, can compound or mix drugs for sale.
Code Section 84-9920 of the Georgia Annotated Code, Supplement, states that any violation of the provisions of Chapter 84-13 shall be a misdemeanor.
In the case of Sconyers v. State, 6 Ga. App. 804, it is held:
"One may own a drug store without being a licensed druggist or pharmacist, provided that the drugs and medicines he offers for sale are sold or compounded, as the case may be, either by one who has himself been licensed according to law, or by an assistant under the supervision of a licensed druggist. But even though the manager of a drug store or pharmacy be licensed, this fact will not authorize sales of drugs or the compounding of prescriptions by his partner or employee, where such licensed manager is not in actual personal charge of the business."
Therefore, it is apparent and it is my opinion that the owner of the drug store is responsible in the event of the violation of the drug law quoted above.

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PROFESSIONS, BUSINESSES AND TRADES-Private Detectives (Unofficial) The State of Georgia does not assess a license tax against private detective agencies.
April 12, 1951 Miss Mildred tGilmore
Your letter of April2, 1951, addressed to the Secretary of State, in which you inquire as to the laws governing private detectives in the State of Georgia, has been forwarded to this office for reply.
'The Georgia law applicable to license tax assessed against detective agencies operating in this State is contained in Section 92-505 of the Annotated Code of Georgia of 1933 and reads as follows:
"Each person, firm, or corporation operating a detective agency or doing detective work for hire or compensation, shall pay, for each office established in this State, in or near cities or towns of 25,000 or more inhabitants, $200; in or near cities or towns of 10,000 to 25,000 inhabitants, $50; and in or near cities or towns of less than 10,000 inhabitants, $25."
However, the above quoted section of law was repealed by a recent act of the Georgia Legislature to become effective the first day of July, 1951.
It is called to your attention that the above section refers to State taxes only; whether or not there would be a county and/or city license tax would depend on local legislation, and it is suggested you contact the authorities in the particular locality in which you are interested for this information.
The State does not publish a directory for private detectives and/or investigators.

PROFESSIONS, BUSINESSES AND TRADES-Real Estate Commission A person who has been engaged in the real estate business in a county of less than 70,000 is entitled to a license either as broker or salesman without standing an examination.

Miss Annelle S. Johnson, Secretary Georgia Real Estate Commission

May 2, 1951

OFFICIAL OPINION QUESTION:
Under the Act of 1950 which amended the Real Estate License Law, would a person who was in the real estate business in a county of less than 30,000 population, under the 1940 census, be entitled to a real estate brokers' or salesmen's license without standing an examination if the 1950 census shows such county to have a population of over 30,000?
ANSWER:
Code Section 84-1401 of the Annotated Code of Georgia of 1933, provides as follows:
"It shall be unlawful for any person, firm, partnership, Association, copartnership or corporation whether operating under an assumed name or otherwise, to engage in the business or capacity either directly or indirectly of a real estate broker or real estate salesman within any county in this State having a population of 30,000 or more, according to the United States Census of 1940, or any future census, without first obtaining a license under the provisions of this Chapter. Provided further that persons who have been engaged in the real estate

351
business either as broker or salesman in counties of less than 70,000 population will be entitled to a license either as broker or salesman upon the payment of the fee for license required by law and will not be required to stand an examination."
It is my opinion that a person who has been engaged in the real estate business either as a broker or a salesman in a county of less than 70,000 population is entitled to a license either as a broker or a salesman upon the payment of the fee as required by law, without being required to stand an examination.

PROFESSIONS, BUSINESSES AND TRADES-Real Estate Commission The Real Estate Commission is without authority to fix a deadline for persons to qualify as real estate brokers or real estate salesmen in counties of less than 70,000 population.

Miss Annelle S. Johnson, Secretary Georgia Real Estate Commission

May 2, 1951

OFFICIAL OPINION QUESTION:
Does the Real Estate Commission have the power and authority to adopt and enforce the following rules'!
"Under and by the authority in the Georgia Real Estate Commission to promulgate necessary rules and regulations for the operation of real estate brokers and salesmen in the State of Georgia as authorized in Section 84-1404 of the real estate license law the Commission unanimously adopts a rule setting April 15, 1951 as a deadline for all qualified persons in counties of less than 70,000 population to make application and furnish sufficient evidence of their qualifications to secure their license under Section 84-1401.
"On and after April 15, 1951 any and all persons making application either as a broker or salesman will be required to stand an examination and salesmen will be required to serve such apprenticeship as required by law."
Code Section 84-1401 of the Annotated Code of Georgia of 1933, reads as follows:
"It shall be unlawful for any person, firm partnership, association, copartnership or corporation, whether operating under an assumed name or otherwise, to engage in the business or capacity either directly or indirectly of a real estate broker or real estate salesman within any county in this State having a population of 30,000 or more, according to the United States Census of 1940, or any future census, without first obtaining a license under the provisions of this Chapter. Provided further that persons who have been engaged in the real estate business either as broker or salesman in counties of less than 70,000 population will be entitled to a license either as broker or salesman upon the payment of the fee for license required by law and will not be required to stand an examination."
Code Section 84-1404 of the Annotated Code of Georgia of 1933, provides as follows.
"The Georgia Real Estate Commission is hereby recreated. The Governor shall appoint three persons, two of whom shall constitute a quorum who shall have been residents of this State for a period of at least 5 years and whose vocations for a period of at least 5 years prior to the date of their appointment shall have been that of either a licensed real estate broker or a licensed real

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estate salesman, actively engaged in the real estate business for said period of time. The terms of the members shall be for three years and until their successors are appointed and qualified. Members filling vacancies shall be appointed by the Governor for the unexpired term. The Commission shall organize by selecting from its members a Chairman and may do all things necessary and convenient to carry into effect the provisions of this Chapter and may from time to time promulgate necessary rules and regulations to carry out the provisions of this Chapter. The Commission shall thereafter meet at least once a month, or as often as is necessary and remain in session as long as the Chairman thereof shall deem it necessary to give full consideration to the business before the Commission. The Commission may hold its meetings in any County in this State over which it has jurisdiction. Members of the Commission, or others may be designated by the Chairman of the Commission, in a spirit of co-operation and coordination, to 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 the advancement of the profession and the standards of the real estate business. Every member of the Real Estate Commission shall receive as compensation for each day actually spent on the work of the Commission and time actually required in traveling to and from its meetings, not to exceed one day's traveling time, the sum or sums as are now fixed by law, and he shall also receive in addition thereto, his actual necessary expenses incurred while engaged in the work of the Commission. Said Real Estate Commission is empowered to recommend to the Secretary of State such assistants or employees as are necessary to do the work of the Commission, and the Secretary of State is empowered to employ and dismiss such persons and to fix the compensation of such assistants or employees."
It is my opinion that the Georgia Real Estate Commission is without authority to fix a deadline for persons to qualify as real estate brokers or real estate salesmen in counties of less than 70,000.
PROFESSIONS, BUSINESSES AND TRADES-Undertakers and Embalmers (Unofficial) The special and professional taxes on undertakers and embalmers have, for all practical purposes, been repealed as of January 1, 1952.
February 28, 1951
Mr. G. W. Dismukes
In answer to your letter of February 22, 1951, in which you made inquiry regarding the exemptions passed by the recent Legislature of the special tax and professional tax on undertakers and embalmers, I wish to advise you that House Bill Number 3 exempted undertakers and embalmers after July 1, 1951, from the special $200.00 tax and also relieved the professional tax of $15.00 on undertakers and embalmers effective of the same date.
Since there is no provision of law providing for a partial payment of these taxes anyone engaged in the profession above mentioned would have to pay the 1951 tax as originally provided but will be relieved from paying said taxes for the year beginning January 1, 1952.

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PUBLIC DEFENSE-Civil Defense The Director of Civil Defense, when authorized by the Governor, may-by a rule, regulation or order-require the registration of civilian aircraft based on Georgia fields.
September 21, 1951 Maj. Gen. Ernest Vandiver, Jr., Director State Department of Defense Civil Defense Division
OFFICIAL OPINION QUESTION:
May the Director of Civil Defense, when authorized and empowered by the Governor, make a rule, regulation or order which would require the registration of civilian aircraft based on 'Georgia fields where the registration is made without cost to the owner of the aircraft ? ANSWE'R:
Yes. By Section 6~b-1 of the Georgia Civil Defense Act of 1951, the Governor or his delegated authority is authorized to make necessary orders, rules and regulations to carry out the provisions of the Act.
By Section 6-b-2 the Governor or his delegated authority is authorized to make a comprehensive plan for the civil defense of this State.
By Section 6-b-3 and in accordance with, and pursuant to, the State plan of civil defense, the Governor or his delegated authority is authorized to:
1. Ascertain the requirements as to food. 2. To plan for and procure all necessary supplies, medicines and equipment. 3. To use and employ from time to time any of the property, service or resources within the State for the purposes of the Act. 4. To make surveys of facilities and resources and institute training programs. 5. To take all preparatory steps to insure the furnishing of adequately trained and equipped forces of civil defense personnel in time of need. It is this last sub-section of Section 6 which contains the authority to issue the regulations, which is the subject of your request. I construe the following provision as authority for such regulation: "To use and employ from time to time any of the property, services, and resources within the State for the purposes set forth in this Act." I deem this provision of Section 6-b-3, when read in the light of the announced policy of the act contained in Section 2, and because the term "civil defense" is defined by Section 3 of the act to mean preparation for, as well as the carrying out of, emergency functions to be a sufficient delegation of authority to warrant the issuance of such a regulation.

PUBLIC REVENUE-Ad Valorem. Tax The Revenue Department has the power to determine the form of classification and specification of property owned by Railroad Companies for tax purposes.

Honorable W. Harvey Atkinson Director, Property and License Tax Unit

July 2, 1951

OFFICIAL OPINION QUESTION:
What interpretation should be placed upon Section 92-602 of the 1933 Code which provides for the payment of taxes by railroad companies, and for the

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property of said companies to be separately named and valued as to each class or species of property owned?
ANSWER: It is my opinion that where that Code Section states: "so far as the same may
be practicable," the statute has given the Revenue Department the power to determine the form of classification and specification of property owned by these companies for their tax returns.
Therefore, it is my opinion that the request of the GeorgiP. and Florida Railroad to pay taxes as provided by Code Section 92-5712, .vhich provides for the payment of taxes on property by the holder of any equity, lien, or interest, on specified items within a particular class, can only be allowable as provided within the approved form of classification or specification which you are requiring for all such companies.
If the items on which the tax is desired to be paid can not be separately determined from the class or species in which it falls, the tax must be paid on that entire class.
However, if you have an approved form for returning property valuations of such companies in which all items of property of all classes or specifications may be separately and distinctly "-et out so that on such a return, the property on which the Georgia and F'lorida Railroad Company desires to pay a tax may be clearly ascertainable, then the Georgia and Florida Railroad Company may legally demand the right to return their property with all classes and species of property itemized.
The intent of the law appears to be that where property can be ascertained from the approved return which is used by all such companies that a tax paid on such an ascertainable division of the return must ie allowed. But nowhere does it appear that the intent of this statute was to provide for any special return or special treatment for any individual taxpayer.
If you can provide the Georgia and Florida Railroad Company with a standard approved property tax form on which they can itemize all of their property in all classes and species required in the return, I would recommend that this be done and the payment of the tax allowed.
PUBLIC REVENUE-Ad Valorem Tax (Unofficial) Fraternity property is not exempt from taxation unless it is used as an institution of purely public charity.
April 2, 1951
Mr. Frank H. Myers In answer to your letter of March 28, 1951, in which you ask several ques-
tions pertaining to the taxation of fraternity property and etc., first I will cite the case of Mu Beta Chapter Chi Omega House Corporation v. Davidson, taxcollector, et al, 192 Ga. 124, which reads in part as follows:
"Property of a corporation, although its petition for charter describes it as an institution of purely public charity, is not exempt from taxation under the Code, Section 92-201, the property involved being a dwelling purchased for the purpose of being actually occupied as a place of residence by members of the local chapter of a Greek letter college fraternity, its use and occupancy limited to those who are active members of the fraternity who become members by invitation, and each member of the local chapter who resides at said chapter house paying to the local chaptet:' thirty dollars per month for room and board, which charge is identical with the charges made by the educational in-

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stitution at which said chapter is located for the use of its dormitories where meals are furnished as well as rooms."
* * *
"The problem presented is whether or not the plaintiff's property is exempted from taxation under the constitution and laws of this State. Art. 7, sec. 2, par. 2 (Code Sections 2-5002, 92-201). If exempt, it is only because it is property used exclusively as an institution of purely public charity. The test is not whether the plaintiff is an organization of purely public charity, but whether the property itself is dedicated to charity and used exclusively as an institution of purely public charity. Richardson v. Executive Committee of the Ba,ptist Convention, 176 Ga. 705 (169 S.E. 18); Tharpe v. Central Georgia Council, 185 Ga. 810 (196 S.E. 762). It is the use to which the property is put, rather than the declaration of purpose found ir. its owner's charter, that determines the question of exemption from taxation. Theta Xi Building Asso. v. Board of Review, 217 Iowa, 1181 (251 N.E. 76); Beta Theta Pi Corporation v. Board of Commissioners, 108 Okla. 78 (234 Pac. 354). We are therefore to consider the entire evidence on that subject, in order to ascertain whether the claim of exemption is well founded. Tharpe v. Central Georgia Council, supra. In doing so, we are to bear in mind that on the question of exemption from taxation by the constitution and statute the doctrine of strict construction applies. Mayor of Gainesville v. Brenau College, 150 Ga. 156 (103 S. E. 164); Richardson v. EcX. Com., supra. The property involved is a dwelling-house purchased by the plaintiff for the purpose of being occupied as a place of residen-oe by members of the local chapter Mu Beta of the fraternity Chi Omega who are students at the University of Georgia. It is so used and occupied. It is referred to in the evidence as the chapter house. A Greek-letter fraternity house owned by the fraternity was held exempt from taxation by the Supreme Court of Oklahoma under a provision of the constitution of that State which exempted property "used exclusively for schools, colleges, and all property used exclusively for religious and charitable purposes." Beta Theta Pi Corporation v. Board of Commissioners, supra.
"The Supreme Court of Kansas held exempt similar property similarly owned, the decision being placed on a Kansas statute which exempted "all real estate not exceeding one-half acre in extent and the buildings thereon situated and used exclusively by any college or university society as a literary hall or dormitory," etc. Kappa Kappa Gamma House Association v. Peal'cy, 92 Kan, 1020 (142 Pac. 294) (52 L.R.A. 995). A like ruling was made by the Supreme Court of Indiana, but there too it was placed on a statute expressly exempting property owned by any Greek letter fraternity. In the first of these three cases the property was owned by the fraternity using it. The Oklahoma court's decision seems to be unsupported, and to run counter to many other well-considered cases; but if its soundness were conceded, it is inapplicable here, because it dealt with property owned by the fraternity itself. Most courts which have dealt with the question have taken the view that the primary purpose of a college fraternity house is to furnish a private boarding place and dormitory for the use of the fraternity members, and accordingly have generally held that college fraternity houses are not exempt from taxation on the ground that they are beneficient and charitable organizations. See 35 A.L,.R. 1045, note, where the authorities are collected, following the report of the case of Knox College v. Board of Review, 308 Ill. 160 (139 N.E. 56). A well-reasoned case is that of People v. Alpha Pi, 326 Ill. 573 (158 N.E. 213, 54 A.L.R. 1377). The facts there were more like those of the instant case, except that there the corporation's purpose was to provide a house at moderate cost to those able to pay, and

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gratuitously to those unable to pay, the recipients to be members of a certain Greek-letter fraternity. Exemption was claimed under a provision of an Illinois statute, a clause of which exempted from taxation "all property of institutions of public charity, all property of beneficient and charitable organizations," etc. The court ruled as follows: "To constitute a 'public charity,' 'benefit must not be conferred on certain and definite individuals, but must be conferred on indefinite persons composing public, or some part of the public; but indefinite class may be of one sex, or inhabitants of particular city, town or county, or members of particular religious or secular organizations."
"Counsel for the plaintiff in his brief says: 'Plaintiff does not contend that its property is exempt from taxation because it is a sorority house, or chapter house. It bases its claim for exemption from taxation solely on the provisions of the charter creating it as an institution of purely public charity, and providing that no private person may ever have any right or interest in its property, but all of it must be used for the purpose of advancing the cause of education.' We have heretofore undertaken to show that its right to have this property relieved of its share of the tax burden is not to be measured alone by the words of its charter. That may and should be looked to, but the purpose therein set forth is not conclusive of its right to exemption. Viewing the case as a whole, we do not find that the corporation has provided a home for young women unable to pay board. Its sheltering arms are not alone for those who are poor in this world's goods. There is not the slightest suggestion in the record that this is a home for the underprivileged, those "to fortune and fame unknown." No "whosoever will" sign is hung out. Those who may share its comforts and benefits are only those who are acceptable to those already on the inside, who are willing to accept the stranger on the outside "as a fraternal associate.'' Membership in the fraternity is a prerequisite to sharing the 'benefits of the house, the membership being brought about by the invitation of the existing active members. As further illustrative of whether or not the use to which this property is put makes it an institution of charity, of public charity, of purely public charity, as it must be before the exemption can be allowed, let it be remembered that each person who is eligible to reside as the chapter house must first pay to the local chapter a "pledge" fee of ten dollars, an initiation fee of sixty dollars, local chapter dues of four dollars per month, and national dues of eight dollars per annum. But this is not all. The record further recites: "Each of the members of said chapter who reside of said chapter house pays to the local chapter, Mu Beta Chapter Chi Omega, the sum of $30 per month for her room and board, which charge is identical with the charges made by the University of Georgia for the use of its dormitories where meals are furnished as well as rooms. Of the payments made by the members residing at said chapter house, the sum of $10 per month is set aside by the chapter as a house fund, and the remainder is used by the chapter to furnish food, chaperone's or house mother's salary, the pay of servants to prepare and furnish food, to serve the food, to clean and keep in order the chapter house, and to provide as comfortable and convenient living accommodations for the students as may be possible, including fuel, lights and water at the chapter house. Any surplus from the monthly payments by the resident members are used either to improve the living conditions of the active members residing in the chapter house, or returned to those making the payments."
"It is difficult for us to distinguish on principle the facts in the record before us from a case like this: Suppose Mr. A., a benevolent citizen of a college town, in order to insure sufficient and wholesome boarding places for

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students, buys a lot with a large dwelling thereon, and places Mrs. B in possession. The latter rooms and hoards certain invited students therein, charging each one the usual and prevailing price, and in addition exacts from each boarder a stated sum which she pays to Mr. A. Although he derives no profit therefrom, could it be said that the boarding house was an institution of purely public charity? We apprehend not. We are obliged to conclude that the contention of the plaintiff that it is entitled to an exemption from the payment of taxes must be denied. In addition to the Georgia cases cited, we list for convenience the following: Trustees v. Bohler, 80 Ga. 159 (7 S.E. 633); Massenburg v. Grand Lodge, 81 IGa. 212, 218 (7 S.E. 636); Mundy v. Van Hoose, 104 Ga. 292, 300 (30 S.E. 783); Linton v. Lucy Cobb Institute, 117 Ga. 678, 683 (45 S.E. 53) ; Brenau Association v. Harbison, 120 Ga. 929 (48 S.E. 363, I Ann. Cas. 836); Brewer v. American Missionary Asso., 124 Ga. 490 (52 S.E. 804); City of Waycross v. Waycross Savings & Trust Co., 146 Ga. 68 (90 S.E. 382); Atlanta Masonic Temple Co. v. Atlanta, 162 Ga., 244 (133 S.E. 864); Richardson v. Executive Committee of the Baptist Convention, 176 Ga. 705 (169 S.E. 18); Elder v. Atlanta Southern Dental College, 183 Ga. 634, 646 (189 S.E. 254)."
In view of this decision together with those cited therein you will see there is no exemption from taxation on property either real or personal owned by a college fraternity in the State of Georgia.
PUBLIC REVENUE-Ad Valorem Tax (Unofficial) Public utilities make ad valorem tax returns to the Revenue Commissioner.
July 13, 1951
Mr. D. E. Turk In reply to your letter of July 4, 1951, in which you ask whether you are
authorized to assess ad valorem tax against Crisp County Power Company and in answer to your question I will refer you to Code Section 92-5902 of the Code of Georgia of 1933, Annotated, which reads as follows:
"Returns by public utilities made to whom.-All persons or companies owning or operating railroads, street railroads, suburban railroac:i&, or sleeping cars in this State; all persons or companies, including railroad companies, doing an express, telephone, or telegraph business (except small telephone companies, or persons doing a telephone business, whose capital stock or property is oi less value than $5,000); all persons or companies doing a gas, water, electric light or power, hydro-electric power, steam, heat, refrigerated air, dockage, cranage, canal, tollroad, toll-bridge, railroad-equipment, or navigation business, through their presidents, general managers, owners, or agents having control of the company's offices in this State, shall be required to make annual tax returns of all property located in this State to the Comptroll~r General and the laws now in force providing for the taxation of railroads in this State shall be applicable to the assessments of taxes on the businesses above stated."
You may refer to Chapters 92-26 and 92-27 of the Code of Georgia of 1933, Annotated, for a full detail as to the manner of taxing public utility corporations.
The only change made in these Code Sections is that the return is now made to the Revenue Commissioner instead of the Comptroller General.

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PUBLIC REVENUE-Bad Checks The listing of worthless checks and the person issuing the same in an official audit in the State Department of Revenue is not prohibited by Georgia Law.

Honorable B. E. Thrasher, Jr. State Auditor

August 17, 1951

OFFICIAL OPINION FACTS:
We are in the process of making the audit of the State Revenue Department and I find that due to no fault of Commissioner .Charlie Redwine some taxpayers of the State continue to pay their income taxes by worthless checks which seems to be a deliberate attempt by several persons to defraud the State of the just taxes due the State.
Commissioner Redwine seems to be doing everything legally possible to stem this tide of worthless checks which seems to be growing in recent years.
Under Chapter 40-18 of the Code it is a duty of the State Auditor to examine and thoroughly audit all records of all State Agencies and to make reports and in which reports special attention shall be called to several enumerated things among which is irregularities.
It is my thought that persons who attempt to pay their taxes to the State with worthless checks have created a condition of irregularities and that such information should be published in the audit report, giving the name of the person, the address and the amount of the worthless check.
The same situation is beginning to develop in connection with the Sales Tax.

QUESTION: Is the publication of a list of defaulting taxpayers in the official State
audit as set out above in violation of provisions of Section 92-3216 and 92-9914 of the Code of Georgia which deals with the secrecy provision of the Income Tax law?

ANSWER: Section 92-3216 of the 1933 .Annotated Code of Georgia provides in part: "Except in accordance with proper judicial order or as otherwise provided
by law, it shall be unlawful for the State Revenue Commission, any agent clerk, or other officer or employee, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under this law. Nothing herein shall be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the Attorney General or other legal representative of the State of the repolt or return of any taxpayer who shall bring action to set aside or review the tax based thereon, or against whom an action or proceeding has been instituted to re'30Ver any tax or any penalty imposed by this law. . . ."
You will note that the prohibition contained in the above-cited section of the Code applies to divulging or making known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under the State income tax law. A check received by the State Department of Revenue for the purpose of paying a tax due the State of Georgia is not a report or return but is a method or vehicle of paying a tax due the State of Georgia. A check from the very nature of itself could not be secretly retained by the Revenue Department since the only method by which the State

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could realize the amount represented by such instrument would be to transmit it through public channels for collection.
Section 40-1805 of the 1933 Annotated Code of Georgia, prescribing the duties and powers of the State Auditor, provides in part:
"... To thoroughly examine all financial transactions of all the State departments, institutions, agencies, commissions, bureaus and officers and to keep such accounting records as are necessary to provide and maintain a current check upon the fiscal affairs and transactions of all State departments, institutions, agencies, etc.
"To examine and thoroughly audit, at least once a year, and more frequently if possible, each and all of the books, records, accounts, vouchers, warrants, bills and all other papers and records of each and every department, institution, agency, commission, bureau and officer of the State which or who receives funds from the State or which is maintained in whole or in part by Public funds or fees or commissions; and upon the completion of each such audit the State Auditor shall prepare a complete report of the same in triplicate, one copy of which he shall file with the official in charge of the department, institution, etc., so examined, one copy of which he shall transmit to the Governor, and the third copy of which shall be filed in the office of the State Auditor as a permanent record and for the use of the press of the State and in which report the State Auditor shall call special attention to any illegal, improper or unnecessary expenditures, all failures to keep records and vouchers required by the law, and all inaccuracies, irregularities and shortages, and shall make specific recommendations for the future avoidance of the same .....
It is my opinion that the prohibition contained in Section 92-3216 applies only to divulging the amount of income or particulars set forth or disclosed in an income tax report or return required by law.
The listing of worthless checks, their amount and the person issuing the same in an official audit, made by the .State Auditor, of the State Department of Revenue, does not come within the prohibition contained in Section 92-3216 of the 1933 Annotated Code of Georgia. Section 40-1805 of the 1933 Annotated Code of Georgia makes it mandatory upon the State Auditor to list and call special attention to all irregularities found in an examination of a department of the State Government and to make available for the information of the public, through the press, such transactions and for the further information of the public officials of the State charged with the responsibility of instituting legal action for a violation of the laws of the State of Georgia.
PUBLIC REVENUE-Beer, Wine, Liquor There is no provision in the Malt Beverage Act for a referendum on the question of permitting or prohibiting the sale of beer in any county or municipality in this State, but such is left up to the governing authorities of the local subdivisions.
March 30, 1951 Honorable J. G. Rockmore Director, Malt Beverage Unit Department of Revenue
OFFICIAL OPINION SUBJECT:
Is there any provisiOn in the Malt Beverage Act for a referendum to be held permitting or prohibiting the sale of beer in any county or municipality?

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ANSWER: No, there are no prov1swns in the Malt Beverage Act for a referendum
to be held permitting or prohibiting the sale of malt beverages. The manufacturing, distributing, selling or otherwise dealing in malt bev-
erages is legal in the State of Georgia provided the local governing authorities of a municipality or county issues to a person the proper permit to sell malt beverages. It is in the discretion of the governing authorities of such a county or municipality to grant or refuse to grant a license or permit and there are no provisions in the Malt Beverages Act requiring a referendum to be held to determine whether or not malt beverages should not be sold ir. a particular locality.
PUBLIC REVENUE-Beer, Wine, Liquor The importation of beer into this State may be so regulated as to require it to be shipped through a regular distributor for the purpose of collecting the excise tax on all such beer. Claims for refunds for the tax may be filed by those persons who are exempt under the Malt Beverages Act.
November 15, 1951
Mr. J. B. Rhodes, Director of the Malt Beverages Tax Unit Department of Revenue
OFFICIAL OPINION QUESTION:
Can the importation of beer into this State be so regulated as to require all beer imported to be shipped through a regular distributor for the purpose of collecting the tax on all such beer while providing that claims for refunds of the tax paid may be filed and will be paid after a proper t<howing of the exempt character of the consumer?
ANSWER: The State Revenue Commissioner may require that aU malt beverages that
are sold or offered for sale by any person, firm or corporation have the required tax paid crown or lid-crown thereon showing that the tax has been paid on the malt beverages so offered for sale.
Section 58-735 of the Georgia Code Annotated of 1933, reads as follows:
"Bottles and cans to have tax-paid crowns or lids.-Any person, firm or corporation engaged in the business of selling or distributing ~ither at wholesale or retail, the malt beverages specified in this Chapter, in bottles or cans, shall not sell nor offer for sale, or possess for the purpose of sale, any bottle or can containing such malt beverages, unless such bottles or cans shall have attached or affixed thereto what is known as a tax-paid crown or lid-crown, showing that the tax has been paid on the malt beverages contained in such bottle or can."
From reading the above quoted Code Section it can readily be seen that all malt beverages offered for sale by any one in this State must have the tax paid crown or lid-crown showing that the tax has been paid on the malt beverages that are offered for sale.
Sections 58-705 of the Georgia Code Annotated of 1933, sets forth the excise tax to be paid on the various containers of malt beverages, and provides that there shall be no excise tax on sales of malt beverages sold to persons outside of this State for resale or consumption outside of this State or from

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sales of malt beverages sold to stores or canteens located on the United States Army Posts or Reservations.
The State Revenue Commissioner, under the provisions of Section 58-737 of the Georgia Code Annotated, is empowered and authorized to make and promulgate such rules and regulations as he may deem advisable for the purpose of carrying out the provisions of Section 58-735, supra, and in view of the fact that malt beverages are sold without the State and to Military Reservations, he would be authorized to require that all malt beverages offered for sale have the excise tax paid thereon, and the bottle or can containing the malt beverages properly stamped indicating that such tax has been paid, and provide for the refund of the excise tax paid by a distributor on r.1alt beverages sold under the exemption of the Malt Beverages Act.
PUBLIC REVENUE-Beer, Wine, Liquor (Unofficial) An agent of the Department of Revenue employed to enforee the Revenue Tax Act is not such an "officer" as to be entitled to the arresting fee provided for in Section 58-208 of the 1933 Code of Georgia.
March 30, 1951 Honorale M. Price
In further reply to your letter of March 24, 1951, with reference to a claim by a State Revenue agent under Section 58-208 of the Code of Georgia of 1933, Annotated and your request for an opinion as to the right of such revenue agent to claim the fee as provided in this section.
Section 58-208, Supra, reads as follows:
"Costs on conviction; addition to officer arresting, etc.-Whenever any person shall be arrested and convicted for the offense of using any of the apparatus or appliances referred to in the preceding section in the distilling or manufacturing of any of the liquors or beverages specified in section 58-201, there shall be taxed in addition to the costs already provided by law and as a part of the costs in such cases the sum of $25, which sum shall be paid over to the officer making said arrest and procuring the evidence resulting in conviction of said accused."
The above Code Section provides that "the officer" making the arrest shall be entitled to the fee enumerated therein. It must therefore be determined if a State Revenue Agent is an officer as contemplated in said Code Section.
"T'he Revenue Department Act to Legalize and Control Alcoholic Beverages and Liquors" (Acts 1937-38, Ex. Sess. pages 103-104) provides that the Act shall be administered by the State Revenue Commissioner and also provides for agents and inspectors for the enforcement of the Act. Such agents and inspectors are employees of the State Revenue Department for the sole purpose of enforcing this Act and are not generally law enforcement officers with power to enforce the criminal statutes of this State as an agent of the Revenue Department.
While it would be the duty of a State Revenue agent to make arrest and procure evidence for the illegal manufacture of liquors under the present Revenue Tax Act to control alcoholic bevera-ges and liquors it can not be said that such agent is an "officer" within the meaning of Section 58-208, Supra and it must be concluded that a State Revenue agent is not an ''officer" as contemplated in said quoted code section but merely an employee of the State Revenue Department with authority to enforce the present "Revenue Department Act to Legalize and Control Alcoholic Beverages and Liquors."

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PUBLIC REVENUE-Beer, Wine, Liquor (Unofficial) The sale of beer within a county or municipality is within the sole discretion of the governing authorities, while the sale of wine is controlled by a vote of the people in the particular political subdivision.
March 30, 1951
Rev. W. Park Smith In further reply to your letter of March 2, 1951, with reference to the
sale of beer and wine in Johnson County, I am pleased to answer the following question as stated in your letter: "If an election is held in the county to vote against the sale of beer and wine, and the election goes in favor of doing away with beer and wine, does this make it mandatory that the County commissioners cease issuing licenses in the county?
Chapter 58-7 of the Code of Georgia of 1933, Annotated, which governs the sale and distribution of malt beverages does not provide for an election to 'be held in the various counties to determine if malt beverages shall or shall not be sold. 'The sale of malt beverages in this State is legal in any county or municipality where the governing authorities of such county or municipality issues a permit or license to a person to sell the same.
Sections 58-716 and 58-717 of the Code of !Georgia of 1933, Annotated, gives the municipal or county authorities the right to issue licenses for the sale of malt beverages. Such governing authorities can issue a license or they can refuse to issue a license. It is solely within their discretion, and I believe an election called to determine if the sale of malt beverages would be allowed or prohibited, would have no legal effect upon such governing authorities.
Section 58-807 of the Code of Georgia of 1933, Annotated, Supplement, provides for an election to determine whether or not the sale of wines shall be prohibited and this section reads as follows:
"County election as to sale. Disorderly places.-Any county may, upon petition signed by 15% of its registered voters, call an election to determine whether or not the 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."
If an election was held under the terms of this section and the results of the election were to prohibit the sale of wine, I am of the opinion that it would be mandatory upon the governing authorities of Johnson County and the City of Wrightsville to prohibit the sale of wine.
PUBLIC REVENUE-Beer, Wine and Liquor (Unofficial) Alcoholic beverages may be transported through the State of Georgia in interstate commerce without a special permit.
July 19, 1951
Mr. F. T. Stroud I am pleased to acknowledge your letter of July 16 with reference to the
transportation of alcoholic beverages through and into and out of the State of Georgia in interstate commerce. Alcoholic beverages may be transported through the State of Georgia in interstate commerce by common carriers without securing a permit or notifying any official of the State Government. Alcoholic beverages whose destination is within the State of Georgia must be delivered to a State warehouse.
Accordingly your interstate commerce commission permit :is sufficient to transport alcoholic liquors through the State of Georgia.

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PUBLIC REVENUE-Fi. Fas. (Unofficial) A constable can do all things necessary in the collection of taxes, including a levy, except the sale of the property and the signing of the deed which must be done by the sheriff.
January 9, 1951 Honorable Cohen Anderson
It is my view that the words "or other officer of any county" in Code Section 92-8001 means levying officer.
There is nothing to prevent the Tax Commissioner from turning over to a constable all uncollected tax fi. fas. Care should be taken to make sure that the person chosen is properly qualified and appointed and further that he is bonded. Such a constable can then do all things toward collection of taxes, including levy, but at that point the fi. fa. must be turned over to the Sheriff of the County, who shall make the sale and sign the deed.

PUBLIC REVENUE-Foreign Associations A foreign association maintaining an office and place of doing business in Georgia is such an entity as to require it to qualify as a foreign corporation in order to do business in the State of Georgia.

Honorable W. Harvey Atkinson Director, Property and License Tax Unit

July 19, 1951

OFFICIAL OPINION QUESTION:
Does a foreign association maintaining an office and place of doing business in !Georgia have to qualify as a foreign corporation to do business in the State of Georgia? ANSWER:
A foreign association maintaining an office and place of doing business in the State of Georgia would be required to qualify with the Revenue Commissioner under Section 92-2403 of the Annotated Code of Georgia, which reads as follows:
"92-2403. Foreign corporations.-All corporations incorporated or organized under the laws of any other State, Territory, or Nation, doing business or owning property in this State, except those not operated for pecuniary gain or profit, in addition to all other taxes now required of them by law, are hereby required to pay each year an annual license or occupation tax for the privilege of carrying on their businesses within this State, as specified in the following scale:

When the Amount of Capital Stock and

,Surplus Employed in the State is

Amount of Tax

Not in excess of $10,000 --------------------------------------------$ 10

Over $ 10,000 and not over $ 25,000 ---------------------------- 30

Over $ 25,000 and not over $ 75,000 ---------------------------- 75

Over $ 75,000 and not over $ 100,000 ---------------------------- 100

Over $ 100,000 and not over $ 300,000 ---------------------------- 200

Over $ 300,000 and not over $ 500,000 ---------------------------- 250

Over $ 500,000 and not over $ 750,000 ---------------------------- 300

Over $ 750,000 and not over $ 1,000,000 ----------------------------- 500

Over $ 1,000,000 and not over $ 2,000,000 ---------------------------- 750

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Over $ 2,000,000 and not over $ 4,000,000 ---------------------------Over $ 4,000,000 and not over $ 6,000,000 ---------------------------Over $ 6,000,000 and not over $ 8,000,000 ---------------------------Over $ 8,000,000 and not over $10,000,000 ---------------------------Over $10,000,000 and not over $12,000,000 ---------------------------Over $12,000,000 and not over $14,000,000 ---------------------------Over $14,000,000 and not over $16,000,000 ---------------------------Over $16,000,000 and not over $18,000,000 ---------------------------Over $18;000,000 and not over $20,000,000 ---------------------------Over $20,000,000 and not over $22,000,000 ----------------------------
Over $22,000,000 ----------------------------------------------------

1,000 1,250 1,500 1,750 2,000 2,500 3,000 3,500 4,000 4500 5,000

For the purpose of ascertaining the tax hereby imposed, every corporation subject to said tax is deemed to have employed in this State the proportion of its entire outstanding issued capital stock and surplus that its property and assets

in this State bear to all its property wherever situated and that the volume of business done in this State bears to the total volume of business done by the corporation. Capital stock having no nominal or par value shall be deemed to have such value as is fixed therefor by the Comptroller General from the information contained in the report to be filed by said corporations as hereinafter provided for, and from any other information obtained by the Comptroller General.
Such a corporation or association would also be required to comply with Code Section 92-2404 of the Annotated Code of Georgia, which is as follows:

"92-2404. Returns; payment of tax; effect; certain companies excepted; reports of foreign corporations.-Returns shall be made and the tax required by section 92-2403 shall be paid to the Comptroller General, and the payment oi said tax shall authorize said corporation to exercise the privileges specified in that section in any county in this State, except as otherwise provided by law; and upon payment of said tax the Comptroller General shall furnish to said corporation a certificate or duplicate receipt for each agent in the several counties of this State that the tax herein provided for has been paid. The payment of this tax shall not be construed to relieve a corporation or its agents of any other license or occupation tax whatever: Provided, that this section and sections 92-2401 to 92-2403 shall not apply to insurance or sewing-machine companies, which are separately taxed by other provisions of law; Provided further, that all returns by corporations, resident or nonresident, shall be made under oath; and when any corporation paying this license or occupation tax requires or demands more than two duplicate certificates for agents, such corporation shall be required to pay an additional fee of $1 for each duplicate certificate or :receipt

over and above the first two mentioned."

And such an association or corporation would also be required to qualify under Section 92-2405 of the Annotated Code of Georgia, which reads as follows:

"92~2405. Annual reports of foreign corporations.-Each foreign corporation doing business or owning property in this State shall, on or before the first day of January in each year, make a report to the Comptroller General, upon forms

furnished by him, showing:

(a) Name of the corporation and under the law of what State or County

organized.

(b) Location of its principal office.

(c) Names of the president, secretary, treasurer, and members of the board

of directors, with the post-office address of each.

(d) Date of the annual election of officers.

(e) Amount of authorized capital stock, and the par value of each share.

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(f) Amount of capital stock subscribed, the amount of capital stock issued, and the amount of paid-up capital stock, surplus, and undivided profits.
(g) Nature and kind of business in which the Company is engaged and its place or places of business, both within and without the State.
(h) Name and location of its offices in this State, and the name and address of the officers or agents of the corporation in charge of its business in this State.
(i) Value of the property owned and used by the company in this State, where situated, and the value of the property owned and used outside of this State and where situated: Provided, that in the case of a railroad company located partly in this State and partly in other States, it shall only be necessary for said railroad company to report its total main-track mileage in all States and its total main track mileage in this State, and the tax assessable against it under this law shall be based upon that proportion of its capital stock and surplus which its main-track mileage in this State bears to its total main-track mileage both within and without this State.
(j) Volume of business done by the company in this State. (k) Volume of business done by the company outside of the State, and where said business is done. (I) Change or changes, if any, in the above particulars made since the last annual report. (m) Balance sheet as of the last day of the last fiscal or calendar 'year. Such report shall be signed and sworn to before an officer authorized to administer oaths, by the president, vice president, secretary, treasurer, superintendent, or managing agent in the State, and forwarded to the Comptroller General. In the event any corporation subject to the provisions hereof shall fail to make the reports herein required when required, said corporation shall by that fact become liable to 10 per cent of the face value of said tax as added penalty, to be collected in the same manner as the tax itself is collected: Provided, however, that the Comptroller General shall have the authority to extend the time either for making said report or paying the tax, for good cause shown."
The true test in a case of this kind would be whether or not such an association is deemed by the laws of the State under which it is created as a corporation. The laws of Massachusetts requiring such an association to comply with all of its corporate laws deems it to be, for all taxable purposes, a corporation.
PUBLIC REVENUE-Homestead Exemption (Unofficial) Homestead exemption applies to all taxes except those levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness.
July 9, 1951
Honorable Harold S. Willingham You ask whether or not the levy of a tax made in accordance with and
pursuant to a local constitutional amendment (Ga. Laws 1937-38, page 20) which permits the governing authority of Cobb County to levy a tax, not to exceed three mills upon the valuation of the property, for the support of fire prevention districts can be made on homestead exempt property.
Article VII, Section I, Paragraph IV of the Constitution of 1945 and the enabling Act (Ga. Laws 1946, pp. 12,14; 92-219) provides that:
"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

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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, except taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness.'' (Emphasis added.)
The exemption here granted is all inclusive except as to taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness. Therefore, it is my opinion that this levy cannot be made on the homestead exemption.
PUBLIC REVENUE-Income Tax Assessments (Unofficial) There is no statute of limitation on the assessment of taxes upon income whioh was not returned.
April 6, 1951 Honorable Robert W. Shand
In answer to your letter of April 2, 1951, in which you requested information concerning the statute of limitations on estates paying income tax and their liability therefor, I will refer you to our Code Section 92-3303 b (Annotated 1933) which reads as follows:
"92-3303. Period of limitation upon assessment and collection.- (b) In the case a return is filed which fails to disclose the total income from all sources, or the return is incomplete, the tax on the amount of income which is not fully disclosed together 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 without assessment at any time.''
I am of the opinion that this Code Section answers your question completely.
PUBLIC REVENUE-Income Tax 'The administrative practice of the Department of Revenue prohibits disallowance of the reasonable depletion claims by oil companies.
May 14, 1951 Mr. F. L. Dillard, Director Department of Revenue Income Tax Unit
OFFICIAL OPINION QUESTION:
Whether or not an oil company may claim as depletion 27!/z% of oil produced and sold, as is allowed by the Federal law, under Section 92-3109 (f) of the Annotated Code of Georgia .of 1933, Supplement, and regulations promulgated pursuant thereto. ANSWER:
Section 92-3109 (f) of the Annotated Code of Georgia of 1933, Supplement, provides:
"A reasonable allowance for the depreciation and obsolescence of property used in the trade or business; and in the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion: Provided, that after the cost has been recovered or restored through depreciation previously allowed for either Federal or State income tax purposes no further deduction shall be allowed. The amount allowed as a deduction for depreciation or depletion

367
shall in no instance exceed the amount so allowed in a return filed with the Federal Government for the same period."
The regulation pursuant to this section of the Code is as follows: "Depreciation to be allowable must be based on the cost of the depreciable property and should be charged off over the estimated useful life of the property, and is deductible only in the year in which sustained. Depreciation allowable and not claimed in any taxable year may not be added to the amount claimed in subsequent taxable year. Depreciation on current additions to depreciable assets is deductible beginning with the date of acquisition. Depletion of natural resources such as timber, coal, oil, gas, minerals, stone, gravel and clay deposits is deductible on the same basis as is allowed for Federal income tax purposes. To be allowable for State income tax purposes, depreciation must be charged off on the taxpayer's books and suitable subsidiary record must be kept to show the facts relating to the depreciation and depletion deducted on the tax returns. After the cost has been recovered or restored through depreciation previously allowed for either Federal and/or State income tax purposes, no further depreciation shall be allowed. The amount deducted for either depreciation or depletion shall in no instance exceed the amount allowed for federal income tax purposes for the same period." It is clear by the simple wording of the Georgia Statute that no depletion is to be allowed that exceeds the amount allowed by the Federal Law. The Georgia Statute also provides that in the case of mines, oil and gas wells, etc. reasonable depletion is allowable. Therefore, it would appear that the State Revenue Commissioner is required by this Act to determine the reasonableness of depletion allowance and he is limited to the upper extreme by the language, "depletion shall in no instance exceed the amount so allowed in a return filed with the federal government ... ". It is to be noted that the regulation promulgated by the Commissioner states that depletion is deductible on the same basis as !lllowed for Federal income tax purposes and the Federal depletion allowance amounts to 27%% of oil produced and sold. The Department of Revenue has been granting such an allowance for a number of years and the question now is whether or not without a change in the law or the regulation the Department can "go back" and disallow these deductions which it formerly allowed. It is my opinion that the administrative practice of the Department of Revenue prohibits disallowance of the depletion claimed.
PUBLIC REVENUE-Income Tax 1. The closing agreements betyeen the Revenue Department and certain distilleries are binding between the parties. 2. Sales of distilled spirits to Georgia wholesalers should be included in the sales ratio for income tax purposes.
June 1, 1951 Honorable Charles D. Redwine Commissioner, Department of Revenue
OFFICIAL OPINION FACTS:
Distilled spirits companies have representatives, agents, or employeees within the State of Georgia whose duties are to keep in touch with customers, to maintain up-to-date information with respect to deliveries and unfilled portions

368
of orders, to create good will for the companies and solicit orders which are delivered to the home office via the Commissioner of Revenue. These orders are accepted or rejected at the home office and if accepted, the distilled spirits are shipped via common carrier to a State Warehouse previously designated by the State Revenue Commissioner for the purpose of affixing thereto State tax stamps and to allow the Commissioner complete regulation and control of all distilled spirits traffic into the State of Georgia. This requirement grows out of a police regulation necessary in the control of distilled spirits traffic. Regulations of the State Revenue Commissioner require that title to distilled spirits be in the wholesaler before the shipment comes within the State of Georgia.
Distilling companies maintain offices within the State of Georgia, staffed by representatives, agents or employees, have bank accounts in Georgia banks, and own small amounts of office furniture.
The Department of Revenue in allocating income for Georgia income tax purposes has used the Three Factor Ratio (Code Section 92-3113, 1933 Code of Georgia, Annotated, Supplement). The Department includes in the sales factor all sales made by distillers to Georgia wholesalers. It is the contention of these distillers that sales made by them to Georgia wholesalers are made without the State of Georgia because title passes elsewhere and that, therefore, these sales should not be included in the Three Factor Ratio apportionment formula.
For several tax years certain distillers paid income taxes determined by the Department of Revenue and signed closing agreements (a copy of the model form is hereto attached) covering these particular tax years. At least one of the distillers has made application for refund on the grounds that the closing agreement negotiated by it is void and since it is, the sales should not be included for the reasons heretofore stated.
QUESTIONS: (1) Are the closing agreements valid and binding contracts between the
parties? (2) Are sales of distilled spirits to Georgia wholesalers to be included in
the sales ratio of the Three Factor apportionment formula? ANSWERS:
(1) A careful study of a model form of the closing agreement used by the Revenue Department convinces me that they are valid and binding and should not be opened for any purpose.
(2) Section 92-3113 (c) of the 1933 Code of Georgia, Annotated, Supplement, provides in part as follows:
"The percentage which the sales made within this State and through, from or by offices, agencies, branches or stores within this State is to the total sales wherever made. For the purpose of this section, in determining the amount o:f sales made within Georgia, there shall be excluded therefrom, sales negotiated or effected in behalf of the taxpayer by agents or agencies chiefly situated at, connected with or sent out from premises owned or rented outside the State by the taxpayer or by his agents or agencies for the transaction of business, and sales otherwise determined by the Commissioner to be attributable to the business conducted on such premises."
This language was amended by the General Assembly (Georgia Laws, 1950, page 299). This amendment, however, has no application to the problem involved here.
A study of the statutes reveals that in all cases foreign corporations "doing business" in Georgia are subject to an income tax arrived at by the inclusion of the sales factor in the apportionment formula. This is so because the reading of the statute holds transactions to be sales when they are made "through, from

369
or by offices, agencies, branches or stores within this State." In the case of distilled spirits, sales are made as the result of the activities of representatives of the various companies and, as such, fall within the category of sales made "through, from or by offices, agencies, branches or stores within this State." Under this construction, the place and the time of passage of title and the part the Commissioner of Revenue plays are immaterial for tax purposes.
The Dan River Mills case has no application here since all distillers are required to "do business" within this State before the privilege of distributing their products is extended to them.
PUBLIC REVENUE-Income Tax Sales of distilled spirits by non-resident producers to Georgia wholesalers are properly includable in the sales ratio of the Three Factor apportionment formula in determining income tax liability.
July 9, 1951
Honorable Fielding Dillard Director, Department of Revenue Income Tax Unit
OFFICIAL OPINION FACTS:
This opmwn is a review, reconsideration and clarification of an Official Opinion rendered to the Honorable Charles D. Redwine, Commissioner of Revenue, on June 1, 1951.
QUESTION: Are sales of distilled spirits by registered producers, non-residents of Georgia,
to Georgia wholesalers properly includable in the sales ratio of the Three Factor apportionment formula in determining income tax liability?
ANSWER: The 21st Amendment of the Constitution of the United States takes the
control of the liquor business out of the interstate commerce provisions of the Constitution and laws appertaining thereto. The states have been expressly given authority to regulate the liquor business from the production of the product through its consumption under the police power of each State. It is a constitutional function of each State Government to promulgate, adopt and enforce whatever laws they may see fit as to any phase of the operation of such a business within its jurisdiction. Therefore, Redwine v. Dan River Mills (1950) 207 IGa. 381, and cases cited therein are not authority for deciding what constitutes the "doing" of business as relates to the liquor business.
A review of the Georgia Laws for the control of the alcoholic beverage business reveals that in 1907, the General Assembly passed a "Prohibition Act" (Ga. Laws, 1907, p. 81); in Georgia Laws, Extra Session 1915, pages 77, 78, 79, the General Assembly passed what is commonly known as the "Bone Dry Act"; in Georgia Laws 1935, page 79, the 'General Assembly passed the "Malt Beverages Act" which repealed those parts of the "Prohibition Act" and the "Bone Dry Act" relating to malt beverages and amended those two Acts to except malt beverages from the provisions for prohibited liquors and beverages.
After the passage of these Acts the legal status of liquor business in Georgia is shown as follows:
Title 58, Intoxicating Liquors, Code of Georgia Section 58-101. "Prohibited liquors and beverages, what embraced in term.The term 'Prohibited liquors and beverages', used in any law to promote tem-

370
perance or to suppress the evils of intemperance, shall include the following: (1) Alcohol, alcoholic liquors, spirituous liquors and all mixed liquors, any part of which is spirituous, foreign or domestic spirits, or rectified or distilled spirits; absinthe, whiskey, brandy, rum and gin; (2) vinous liquors and beverages; (3) nothing in this Chapter shall apply to fermented beverages made from malt, in whole or in part, or any similar beverages."
Section 58-102. "Selling, offering keeping for sale, bartering, furnishing liquors forbidden.-It shall be unlawful for any person, firm, association of persons, or corporation to sell, offer for sale, keep for sale, barter, furnish at public places, keep on hand at a place of business or at or in any social, fraternal or locker club, or otherwise dispose of any of the prohibited liquors and beverages described in Section 58-101, or any of them, in any quantity."
The regulation of malt beverages which was expressly exempt from these provisions is later provided for in Chapter 7, Malt Beverages, of this Title.
In rGeorgia Laws, Extra Session, 1937-1938, pages 103 through 124, Codified in Chapter 58-10 of the 1933 Code Annotated, Supplement, the General Assembly passed what is known as the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" or what is commonly known as the "Local Option Act". This Act did not repeal any pre-existing laws pertaining to the regulation of the liquor business but only enacted new laws providing for the regulation of that business. It was declared in the title to this Act that it should be amendatory, only, to any pre-existing laws relating to such regulation. The pertinent provisions of this Act, as Codified in Chapter 58-10 of the 1933 Code Annotated, Supplement, are:
Section 58-1068. "Sale of liquor a privilege, not a right.-Nothing in this Chapter shall be construed as giving any person a right to sell spirituous liquors as herein defined, but the manufacture, sale, and distribution of spirituous liquors is declared to be a privilege in this State and not a right."
Section 58-1002. "License authorized on special elections in counties.-'The license 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.''
Section 58-1022. "Powers and duties of State Revenue Commissioner.-The State Revenue Commissioner shall have the following powers and duties:"
"(b) To issue licenses provided for in this Chapter, and to decline to issue any license to any person or corporation who in his reasonable discretion are not proper persons to have such permits . . . "
"(h) To adopt and promulgate, repeal and amend such rules, regulations, standards, requirements, and orders not inconsistent with this Chapter or any law of this State or of the United States as he may deem necessary to control the manufacture, sale, distribution, storage, or transportation of distilled spirits and alcohol, in accordance with the provisions of this Chapter, and the conditions under which same may be withdrawn from said warehouse and distributed.''
All the various Code Sections from the laws of Georgia as set out above are at present in full force and effect and are in no way modified other than as shown. As a result, no production, sale, purchase, consumption, or any component functions thereof can legally take place in Georgia without the express consent of the State of Georgia.
Under the power given the Revenue Commissioner under Section 58-1022 of the Code of Georgia, he has promulgated, adopted and published certain Regu-

371
lations governing the activities of the liquor business which are now in full force and effect.
Regulations, Chapter 3, Registered Producers. Section 302. "Only a registered producer shall ship or move or cause to be shipped or moved any distilled spirits from a point outside Georgia to a point within Georgia, and then only by licensed common carrier, for the account of a particular licensed wholesaler, to the State warehouse nearest said wholesaler's place of business, and only if said producer shall have mailed to the Commissioner, by first-class mail, a correct and complete list or invoice showing in detail the items in such shipment by quantity, type, brand, and size and the price, consignee, and point of origin and destination thereof. Said common carrier shall deliver such spirits only to a duly authorized agent or employee of the Department at said State warehouse and shall, at the time each such shipment is accepted, forward a copy of the shipping invoice, bill of lading or waybill thereon to the Revenue Commissioner, State Office Building, Atlanta, Georgia."
Section 305. "No person shall move or cause to be moved into Georgia any brand of distilled spirits or purchase, receive, hold, deliver, sell or offer for sale in Georgia said brand unless and until (a) the producer thereof shall have made application to the Commissioner for registration of said brand, stating the full name of the brand, the age, proof, and neutral spirits content, and accompanied by two samples of such brand of the same size as the minimum container in which such brand is to be marketed or offered for sale in Georgia; and (b) The Commissioner shall have notified the person submitting such samples that the distilled spirits contained therein and the containers thereof meet the requirements of the Department as to all elements and qualities thereof. Every producer shall furnish two samples of any of his registered brands whenever he changes the age, proof or neutral spirits content thereof, and additional samples whenever required to do so by the Commissioner; and no brand so changed shall be sold in Georgia without the Commissioner's prior approval, nor shall any quantity of any brand be sold in Georgia which is found by the Commissioner to vary in composition from the samples thereof most recently submitted to him."
Section 306. "No person shall in any manner take or solicit orders for distilled spirits on behalf of a registered producer except a resident representative or a nonresident representative thereof." (underscoring supplied).
Section 308. "Nonresident representatives of producers shall be producers' agents or officials who are nonresidents of Georgia. No person in any way connected with the manufacture, sale or distribution of distilled spirits outside of Georgia shall have more than one employee in Georgia who is a nonresident of Georgia, and the name of such nonresident representative must be registered by his employer with the Commissioner and a permit granted before such nonresident shall engage in such business in any fashion in Georgia; such permit shall authorize him to contract wholesalers, for the purpose of selling or offering for sale any distilled spirits, only when accompanied by a resident representative of his employer." (underscoring supplied).
Section 310. "Every registered producer shall by letter to the Commissioner designate sales territories for each of his brands sold in Georgia and name one licensed wholesaler in each such territory who within said territory shall have the exclusive right to distribute said brand to retailers. Should a producer contemplate changing the boundaries of his territories or the wholesaler designated by him to distribute any of his brands in any territory, he shall immediately notify the Commissioner of such contemplated change. The Commissioner shall send copies of such notification to all licensed wholesalers directly concerned, and no such change shall be effective unless the Commissioner shall approve the same

372
nor until six months thereafter unless a different effective date shall be fixed by the Commissioner, who shall in each instance determine what delay in effecting such change may be reasonable, necessary or proper to protect the rights of all concerned and the interest of the Department in maintaining a stable system of distribution in Georgia." (underscoring supplied).
From the Regulations and Laws as set out above it may be easily seen that the legal sale and distribution of alcoholic beverages from some point outside the State of Georgia into Georgia requires registration of the producer and a resident representative. The fact that alcoholic beverages are being sold and distributed in Georgia by nonresident producers, through resident representatives, with the consent of the State of 'Georgia, is undeniably "doing business" in the State of Georgia.
It has been unquestionably held by the United States Supreme Court that a State may tax the benefits of a business received from "doing business" within that State proportionately to the over-all benefits to that business gained from interstate operations.
Sections 92-3113 of the 1949 Supplement to the Annotated Code of Georgia provides for an apportionment of income.
Section 92-3113. "Corporations; allocation and apportionment of income.T'he tax imposed by this law shall apply to the entire net income, as herein defined, received by every domestic corporation and every foreign corporation owning property or doing business in this State:" (underscoring supplied).
Of this Section only sub-paragraph (c) of that portion captioned "Three Factor Ratio" is pertinent here.
"(c) Sales ratio.-The percentage which the sales made within this State and through, from or by offices, agencies, branches or stores within this State is to the total sales wherever made. For the purpose of this section, in determining the amount of sales made within Georgia, there shall be excluded therefrom, sales negotiated or effected in behalf of the taxpayer by agents or agencies chiefly situated at, connected with or sent out from premises owned or rented outside the State by the taxpayer or by his agents or agencies for the transaction of business, and sales otherwise determined by the Commissioner to be attributable to the business conducted on such premises."
This is followed by a paragraph captioned "One Factor Ratio'' which contains sub-paragraph (e) as follows:
"(e) If only one of the foregoing three ratios is applicable, the net income of the corporation allocated and apportioned to Georgia shall be determined solely by that one ratio."
These provisions clearly show the intent of this Section was to apportion a tax upon any corporation "doing business" in Georgia and where only one of the three apportionment factors was present it should apply.
By referring to Section 306 of the Regulations for the control of alcoholic beverages as set out above it will become obvious that no sales can be transacted by anyone other than a resident representative or a nonresident representative accompanied by a resident representative (see Section 308 of the Regulations). Any legal import of any alcoholic beverage into Georgia will necessarily fall within the provisions of paragraph (c) of Section 92-3113 of the Code of iGeorgia as it existed in 1948.
It is my opinion that any sale or distribution of any alcoholic beverage within the State of Georgia falls within the taxing provisions of Section 92-3113 of the Code of Georgia that existed in 1948 and as amended in 1950 (Georgia Laws 1950, page 229).

373
PUBLIC REVENUE-Income Tax Income Tax Fi. Fas., after being recorded on the General Execution Docket, may-at the request of the State Revenue Commissioner-be returned to the Income Tax Unit.
August 27, 1951
Honorable F. L. Dillard Director Income Tax Unit Department of Revenue
OFFICIAL OPINION QUESTION:
Should Income Tax Fi. Fas., when recorded on the General Execution Docket by Clerks of the Superior Court, then be returned to the Income Tax Unit or should they be turned over to the Sheriff for levy? ANSWER:
Section 92-3306 of the 1933 Code of Georgia has an express provision contained therein which is shown as follows:
"Provided, that nothing herein contained shall prevent the State Revenue Commission from having said fi. fa. entered upon the general execution docket prior to the time the same is turned over to the sheriff for collection and when said fi. fa is so entered on the general execution docket it shall be entitled to all l;he priorities accorded to other tax executions under the general law of this State, from the date of record."
The General Assembly has provided as shown in the Georgia Laws, 1951, page 617, that:
"The State Revenue Commissioner, or his authorized representative, may levy and conduct judicial sales in the manner now provided for sales by sheriffs and constables."
Therefore, it appears to me that the provision in Section 92-3306 for the Clerk to turn over to the Sheriff the fi. fa. for collection has been modified by the 1951 Act so as to include the State Revenue Commissioner or his authorized representative within the intent and purpose of this Section.
Therefore, it is my opinion that if the State Revenue Commissioner or his authorized representatives so desire and request, the Income Tax Fi. Fa., after being recorded, shall be returned to the State Revenue Commissioner or his authorized representative for levy and execution.
PUBLIC REVENUE-Income Tax 1. The Georgia income tax is imposed upon net income of the corporation and not upon the franchise or the privilege of doing business. 2. Redwine v. Dan River Mills, Inc., 207 Ga. 381, does not determine the question of "doing business" for income tax purposes since 1950 amendment to 92-3113.
October 11, 1951
Honorable Fred L. Cox, Director Income Tax Special Assessments Department of Revenue
OFFICIAL OPINION QUESTION:
1. Where the activities or transactions of a foreign corporation are engaged in exclusively interstate commerce within this State, is the decision of the United States Supreme Court in the case of Spector Motor Service, Inc. v. O'Connor, 71

374
S. Ct. 508, 95 L. Ed. 435, (a) controlling, (b) bear any judicial weight, or (c) clearly distinguishable and inapplicable?
2. Does the decision of the Georgia Supreme Court in the case of Redwine v. Dan River Mills, Inc., 207 Ga. 381, 61 S.E. 2d. 771, control or have any judicial weight when applied to the 1950 amended Section 92-3113?
3. Is the tax imposed by Section 92-3102 and Section 92-3113 a tax whose subject is net income from business done and distinguishable from a tax whose subject is the privilege to do business? If so, is a foreign corporation whose agent salesman, or other representative in whatever capacity, engaging within this State in any activity or transaction, such as solicitation, demonstration, taking of orders, or any other promotional activity which results in the shipment of goods and/ or receipts from customers in Georgia, "doing business" for purposes of the Act? ANSWER:
1. The decision of the Supreme Court of the United States in Spector Motor Service, Inc. v. O'Connor, 340 U. S. 602, 95 L. ed. 573, is clearly distinguishable and inapplicable in respect to income tax liability of foreign corporations engaged in exclusively interstate commerce within this State.
In the Spector Motor case, the tax in question was imposed upon the privilege of doing business and invalid because such imposition violated the Commerce Clause of the United States Constitution since the only business done was interstate commerce. Connecticut did not choose the proper constitutional channel in order to make interstate commerce pay its way. Net earnings were used merely as a measure of a tax whose incidence was upon the privilege of doing business.
Section 92-3113 of the Code of Georgia of 1933, Annotated Supplement, amended by the General Assembly February 16, 1950 (Georgia Laws, 1950, page 299) provides:
"The tax imposed by this law shall apply to the entire net income as herein defined, received by every corporation, foreign or domestic, owning property or doing business in this State. Every such corporation shall be deemed to be doing business within this State if it engages within this State in any activities or transactions for the purpose of financial profit or gain, whether or not such corporation qualifies to do business in this State, and whether or not it maintains an office or place of doing business within this State, and whether or not any such activity or transaction is connected with interstate or foreign 'commerce." (Emphasis supplied.)
The Georgia income tax is imposed upon net income of the corporation and not upon the franchise or the privilege of doing business. To paraphrase the Supreme Court of the United States in the Spector Motor case, it is not a matter of label; the incidence is net income derived from activity.
2. The Dan River Mills case held that solicitation alone was not doing business within the meaning of Section 92-3113 of the Code of Georgia of 1933, Annotated Supplement, before amendment. The Supreme Court of Georgia said that nothing was done in Georgia but solicitation and that was not "doing business" under the statute.
It is my opinion that the Dan River Mills case has no control or judicial weight when applied to the present Section 92-3113 because of the clear expression by the General Assembly as to what constitutes "doing business" for the purposes of the Income Tax Act.
3. This question has been answered in the affirmative by my discussion in answer to Question No. 1. However, activities such as those suggested by you in your Question No. 3 which are engaged in for the purpose of ultimate financial gain should be considered "doing business" within the meaning of the Georgia Income Tax Act.

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PUBLIC REVENUE-Income Tax "Pensions" under the Georgia Income Tax law means a gratuity in recognition of, but not in payment for, past services.
October 31, 1951 Honorable Fielding L. Dillard, Director Income Tax Unit State Department of Revenue
OFFICIAL OPINION QUESTION:
Whether or not amounts received from the Federal Government by a retired post office employee is a "pension" and therefore excluded from gross income under the Georgia Income Tax Law? ANSWER:
Section 92-3107 of the Georgia Code of 1933, Annotated, provides in part as follows:
"Gross income defined.-(a) The words "gross income" mean the income of a taxpayer derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, ... "
"(b) The words 'gross income' do not include the following items which shall be exempt from taxation under this law:
"(6) Amounts received as pensions from the Government of the United States or any State of the United States."
In the case of Dickey vs. Jackson, 165 N. W. 387, the court said: "The words 'pension' and 'compensation' are not synonymous; the former being ordinarily a gratuity from the government or some of its subordinate agencies in recognition of, but not in payment for, past services." The distinction in some cases is difficult to make and each particular case must be decided on its on facts. In any event however, it is clear that if the retired employee has paid income tax on the amounts he contributed to the fund or for the annuity then that amount is not taxable. In the instant case it is my opinion that the retired post office employees retirement compensation is compensation for personal services and clearly comes within the definition of "gross income" as defined by the Georgia Income Tax Act.
PUBLIC REVENUE-Intangible Tax Intangible personal property in the hands of a Georgia trustee is taxable in Georgia, and there is no credit given for any intangible tax paid by the non-resident beneficiaries.
May 3, 1951 Honorable W. Harvey Atkinson, Director Property and License Tax Unit
OFFICIAL OPINION FACTS:
A Florida settlor created a life trust with a Georgia Corporation as trustee and deposited intangible property with the trustee and provided that all income from the trust will be paid to Florida beneficiaries and the corpus to be ultimately delivered to the Florida beneficiaries. QUESTION ONE:
Is the intangible property subject to the Georgia intangible tax? QUESTION TWO:
If the answer to question one is "yes", and if the non-resident beneficiaries

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are required to pay an intangible tax on the same property to the State of their residence, would Georgia permit the Georgia trustee a credit for the intangible tax paid by the non-resident beneficiaries? ANSWER ONE:
As a general principle, unless modified by statute, an executor, administrator or trustee is regarded as the owner, for purposes of property taxation, of the personal property which he holds by virtue of his office, and is taxable in the State in which he is domiciled; and in the absence of statute, such situs is not affected by the fact that the beneficiaries are non-residents.
Ga. Laws 1937-38 Ex. Sess. P. 156-161, states: "Section 4. (a) Every person owning intangible personal property ... is required to file a return thereof describing in detail each item, ... " Section 92-101 of the Code of !Georgia of 1933, states: "All real and personal property, whether owned by individuals or corporations, resident or non-resident, shall be liable to taxation, except as otherwise provided by law." In the case of Higgins v. Commissioner, 126 Kentucky 211, 103 SW 306, it was held that intangible personal property in the possession of a trustee in Kentucky, who manages and controls it, is liable for taxation at the residence of the trustee, although the cestui que trust is a non-resident and such property may also be taxed at his domicile. "Personal property in the hands of a trustee is assessable to the trustee rather than the beneficiary for the reason that the legal title is in the trustee ... " Michigan Trust Company v. Grand Rapids, 262 Mich. 547, 247 NW 744. There are numerous foreign decisions in support of these legal propositions but the Courts of Georgia have not passed upon the question.
Florida Statutes Annotated, Section 199.02, is as follows:
"For the purpose of taxation-intangible personal property is hereby divided into four classes to be known as Class A, B, C, and D, intangible personal property ...
(2) In all Class B. intangible personal property one mill on the dollar of the taxable value of such Class B intangible personal property."
The Supreme Court of Florida in the case of Wood v. Ford (1941) 148 Fla. 66, 3 So. 2d, 490, has said that although bonds are not in the State and although the trustee who has the legal title to and the right to the possession of the bonds, with the right to administer the trust fund is a resident of a foreign state, and even though the interests of the trustee may be taxable in the State of his domicile, the beneficiary, as the real beneficial owner, is subject to taxation in Florida on the benefichtl interest he had in the intangible personal property.
In Owens v. Fosdick (1943) 153 Fla. 117, 13 So. 2d, 700, the Court held that the life interest of the beneficiary residing in the State in a trust fund consisting of securities held in another state by a corporate trustee was not taxable to such beneficiary where she had no incident of ownership in the corpus of the trust, such as a power of revocation, etc. This case is distinguished, however, from the Wood case, supra, in that it was decided on the point that the beneficiary's right to the income might be forfeited under a spendthrift clause and to tax her interest would so closely partake of a tax on income that it would violate the spirit and intent of the Florida constitutional provisions prohibiting an income tax.
In Cumberland County v. Lemoyne Trust Co., 318 Penn. 85, 178 A. 32 the Court held that personal property held in trust should be assessed to the trustee where he resides although beneficiaries of the trust reside outside of the State.

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The taxing of the cestui que trust on his beneficial interest in the trust does not violate any right guaranteed the cestui que trust by either the Federal or State Constitution, even though the trustee be taxed in the State of his residence. Rowe v, Braden, 126 Ohio State, 533, 186 N. E. 392.
The situs of this intangible personal property is Georgia and the cases universally hold that the property in the hands of the trustee is assessable to the trustee, therefore, it is my opinion that the intangible trust property is subject to the Georgia intangible tax.
Section 92-122 of the Annotated Code of Georgia of 1933 provides: "Intangible property, including money, owned by a person domiciled in Georgia, which has acquired a taxable situs and is subjected to tax in another State incident to the conduct of business located in said other State, shall not be deemed to be taxable under the provisions of Sections 92-116 to 92-122." It is my view, under the !Georgia Law, that this intangible property has no taxable situs other than in Georgia and therefore, can not come within the provisions of the above section. The fact that the foreign state taxes such property to the beneficiary under its statutes does not mean that Georgia is precluded from taxing that intangible property which has acquired a taxable situs in Georgia. Further, the intangible property here is not subjected to tax in the foreign State by virtue of its taxable situs thereon or by virtue of the property being an incident to or arising out of the conduct of business in Florida. Florida is taxing such property to the beneficiary and to the extent of his equitable interest therein under a specific statute. Therefore, it is my opinion that the Georgia trustee should not be allowed credit for the intangible tax paid by the non-resident beneficiaries.

PUBLIC REVENUE-Intangible Tax Loans by insurance companies on their policies are not taxable as intangibles.

Honorable W. Harvey Atkinson Director, Property License and Tax Unit

July 9, 1951

OFFICIAL OPINION QUESTION:
Are "policy loans" taxable as intangibles:
ANSWER: Section 56-224 of the Code of Georgia of 1933, Annotated, Supplement, lists
permitted investments by insurance companies and sub-section (d) provides: "Loans on policies issued by the insurance company, not exceeding the
reserve on such policies." When policy loans are made by the insurer, interest is charged. In other
words, insurance companies earn money on policy loans. I am familiar with the contention of the insurer that only that interest is charged which will protect the risk, which amounts to an increase in premium, which takes the place of the yield which the company would obtain if it were to invest the money elsewhere.
I am informed by the Insurance Department of the State of Georgia that policy loans are carried as an asset on the balance sheet and they are listed as a separate item.
Some jurisdictions have held that a debtor-creditor relationship is raised by a policy loan. Rustin v. Aetna Life Insurance Company of Hartford, Connecticut, 98 Neb. 426, 153 N. W. 548. Missouri seems to have had the rule that a true debtor-creditor relationship exists and the insured has an absolute duty to repay.

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Gillen v. Insurance Company, 178 Mo. App. 89, 161 S. W. 667; Equitable Life Assurance Society of U. S. v. DeLisle, 194 Mo. App. 42, 182 S. W. 1026. However, the later case of State ex rel. Northwestern Mutual Life Insurance Company v. Bland et al. (Mo.), 161 A.L.R. 423, seemingly overturns the earlier decisions.
In every jurisdiction other than those noted here the decisions point the other way.
In the case of Board of Assessors of the Parish of Orleans, the City of New Orleans, et al. v. New York Life Insurance Company, 216 U. S. 517, Mr. Justice Holmes in deciding this very problem said:
"This is called a loan. It is represented by what is called a note, which contains a promise to pay the money. But as the plaintiff never advances more than it already is absolutely bound for under the policy, it has no interest in creating a personal liability, and therefore the contract on the face of the note goes on to provide that if the note is not paid when due, it shall be extinguished automatically by the counter credit for what we have called the reserve value of policy. In short, the claim of the policy holder on the one side and of the company on the other are brought into an account current by the very act that creates the latter. The so-called liability of the policy holder never exists as a personal liability, it never is a debt, but is merely a deduction in account from the sum that the plaintiffs ultimately must pay. In settling that account, interest will be computed on the item for the reason that we have mentioned; but the item never could be sued for, any more than any other single item of a mutual account that always shows a balance against the would-be plaintiff. In form it subsists as an item until the settlement, because interest must be charged on it. In substance it is extinct from the beginning, because, as was said by the judge below, it is a payment, not a loan.''
The general view is that policy loans are but payments or advances and impose no personal obligation on the insured to make repayment and that no debtor-creditor relationship exists.
Despite the fact that policy loans are permitted investments in Georgia, that money is earned on them, that a listing of them appears on the asset side of the balance sheet, I am forced to conclude by reason of almost unanimous court decisions, regardless of any personal belief of what the law ought to be, the money "borrowed" from an insurance company upon the policy does not create a debtor-creditor relationship, unless there is an express promise to pay it at a stated maturity or unless a "loan" can not be secured without the consent of the beneficiary.
Therefore, since a debtor-creditor relationship is not created, policy loans are not taxable as intangibles.
PUBLIC REVENUE~L.icenses 1. The Department .of Revenue does not have the authority to issue a certificate of exemption to a veteran to operate a rolling store. 2. A municipality may, where authorized by its charter, levy a street or use tax against a motor vehicle.
May 4, 1951
Honorable J. G. Rockmore, Director Business License Unit
OFFICIAL OPINION QUESTION:
1. Does the State Revenue Department (Business License Unit) have the

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legal right or authority to issue a veteran a certificate of exemption to operate a rolling store?
2. Do the various municipalities of the State of Georgia have the authority to tax a motor vehicle other than ad valorem tax? ANSWER:
In answer to the first question it is well settled in the case of Chambers v. the State, 60 Apps. 876 that no person, firm or corporation is entitled to an exemption from the rolling store tax and in view of this decision the State Revenue Department (Business License Unit) has no authority to issue a veteran or anyone else a certificate of exemption to operate a roiling store.
In answer to the second question it has been held by the Appellate Courts of the State of Georgia that a municipality may where it is authorized by its charter levy a street or use tax against a motor vehicle.
The taxing power of a municipality is derived from its charter. In other words, city ordinances must be backed by a power contained in the city's charter.
The Legislature in 1927 passed a general law which states in part: "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 license with the clerk of council or other officer to be designated by such city or town, together 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." Code Section 68-312. In 1933 the City of Savannah passed an ordinance by virtue of its general charter power to tax business and which provides that the City of Savannah shall have full power and authority to regulate the use of its streets for business purposes, and no person, firm or corporation shall have the right to use the streets of the said City of Savannah for business purposes without having obtained the consent of the Mayor and Aldermen of said city. In an attempt to have this ordinance enjoined, one of the major attacks on it was that it violated the general law provided for in Code Section 68-312 which is quoted above. The Supreme Court of Georgia in holding that the ordinance was sound, made the following technical differentiation. The Savannah ordinance imposing a tax upon the use of the streets for business purposes did not violate Code Section 68-312, which states: "No additional license fee shall be charged by any municipality for the operation of a motor vehicle in the State."
This ordinance places no license or tax upon motor vehicles or the operation thereof. The Court further held that the ordinance was strictly a business or privilege tax, and not a tax upon the vehicles specified in the ordinance of their operation.
In other words, the Supreme Court is simply saying that the municipalities cannot compound an additional license fee upon motor vehicles, but if the City Charter provides the power and authority to regulate the use of its streets for business purposes, it is permissible for the City to levy an additional business or privilege tax on motor vehicles.
In determining whether a municipality has the power to levy such a tax similar to that of the City of Savannah, it is imperative to study the city charter. It would appear to me that a satisfactory method of handling this question would be to point out the above information and then refer the matter to the City Attorney for his study.

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PUBLIC REVENUE-Licenses The five years exemption from occupational license taxes granted to veterans expires March 27, 1952, and any veteran, not otherwise exempt, applying for an occupational license after this date must pay the tax thereon.
December 14, 1951 Honorable Zack D. Cravey Comptroller General and Ex-Officio Insurance Commissioner
OFFICIAL OPINION FACTS:
By the terms of an Act of the Legislature, approved March 27, 1947, (1Georgia Laws 1947, pages 1163-1165) honorably discharged veterans are exempted for a period of five years from the passage of the Act from the payment of certain occupational taxes. Within the occupational license taxes as exempted are those imposed upon Insurance Agents by Section 56-503. By the terms of Section 56-503, local agents' licenses are issued annually for calendar year and are payable on or before March 1 of each calendar year.
QUESTION: On the foregoing state of facts, when does the five year exemption expire
as to insurance agents taxable under Section 56-503 ?
ANSWER: By the terms of the Act of the Legislature of 1947, (Ga. Laws 1947, p. 1163)
the exemption there granted became effective immediately upon approval of the Act. No provision was made for refund of license fees for the calendar year 1947 already paid by persons who might otherwise have become subject to exemption by the terms of the Act of 1947. The intent of the exemption statute is to give five full years of benefits to veterans. Since there was no way provided for apportioning the tax for any part of a year and no provision for refund, this obvious purpose of the act can be effected only by allowing it to apply to those persons who would otherwise be liable to the payment of an insurance agent's license fee prior to March 27, 1952.
Should a person seek to qualify as an agent after March 27, 1952, then he must pay the required license fee notwithstanding the fact that he is a veteran. Eligible veterans, however, acting as agents before March 27, 1952 will be exempt from this tax for the calendar year in question.
PUBLIC REVENUE~Licenses (Unofficial) The Ordinaries of the various counties issue Peddler's License.
March 1, 1951 Mr. L. Powell
With further reference to your letter of February 14, 1951, in regard to a State Peddler's License, I wish to advise that the Ordinaries of the various Counties are authorized to grant such licenses.
Chapter 84-20 of the Georgia Code of 1933, Annotated will provide all of the information necessary to procure peddler's license. Under the law the State can not issue such licenses.

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PUBLIC REVENUE-Licenses (Unofficial) Veterans who are exempt from the business license tax because of disability are not restricted in such exemption to their place of residence.
March 9, 1951 City Clerk Sardis, Georgia
In answer to your letter of February 8, 1951, in which you ask whether or not a veteran, who holds a veterans license to do business and claims a veterans exemption from taxation by city and county authorities, is exempt from so paying to your town a wholesale license tax, when said veteran does not reside therein but is in your town for the purpose of business only.
I refer you to Section 84-2011 of the Code of Georgia of 1933, Annotated, which section provides as follows:
"Disabled or indigent soldiers and blind persons to peddle or conduct business without a license.-Any disabled or indigent Confederate veteran, or veteran of the Spanish-American War, or late European War, or blind person who is a resident of this State, may peddle or conduct business in any town, city, county, or counties thereof without paying a license for the privilege of so doing; and a certificate from the ordinary of any county, stating the fact of his being such disabled or indigent Confederate veteran, or veteran of the Spanish-American War, or the late European War, or blind person, shall be sufficient proof; Provided, that this section shall not authorize peddling or dealing in ardent and intoxicating drinks, or running a billiard, pool or other table of like character, or dealing in futures, or peddling stoves or clocks, or carrying on in the business of a pawnbroker or auctioneer, or dealing in lightning rods: and Provided further, that the privileges hereby granted shall not be transferred to or used by any other person."
From the above quoted section, I am of the opinion that if the veteran meets with the qualifications of the law, which is assumed by virtue of his holding the license, he is exempt from further taxation by your city.
PUBLIC REVENUE-Licenses (Unofficial) Certain veterans are exempt under Section 84-2011 of the 1933 Code of Georgia from paying a business license to operate "juke boxes", but not "pool tables" or "pin-ball machines".
March 28, 1951
Honorable E. S. Dockery In reply to your letter of March 20, 1951 in which you requested information
regarding veterans licenses and especially the provisions contained therein relative to the operation of pool rooms, pin ball machines and juke boxes, I will call to your attention Code Section 84-2011 which reads as follows:
"84-2011. (1888) Disabled or indigent soldiers and blind persons to peddle or conduct business without a license.-Any disabled or indigent Confederate veteran, or veteran of the Spanish-American War, or late European War, World War II or any veteran of peacetime service in the United States armed forces who has a 100 per cent disability incurred during the period of said service, or blind person who is a resident of this State, may peddle or conduct business in any town, city, county or counties thereof without paying license for the privilege of so doing; and a certificate from the ordinary of any county, stating the fact of his being such disabled or indigent Confederate veteran, or veteran of the Spanish-American War, or the late European War, or Veteran of peacetime

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service in the United States armed forces who has a 100 per cent disability incurred during the period of said service, or blind person, shall be sufficient proof: Provided, that this section shall not authorize peddling or dealing in ardent and intoxicating drinks, or running a billiard, pool or other table of like character, or dealing in futures, or peddling stoves, or clocks or carrying on in the business of a pawnbroker or auctioneer, or dealing in lightning rods; and provides further that the privileges hereby granted shall not be transferred to or used by any other person; and provided further, that no veteran making application for a license to peddle or conduct business under this section by reason of having a 100 per cent disability incurred during peacetime services in the armed forces of the United States, shall be entitled to said license until it has been made to appear to the issuing authority that the veteran making application therefor is suffering from a physical handicap disabling to the extent of 100 per cent; that the total income of such veteran is such that he is not subject to the payment of State income tax; and that his service in the armed forces of the United States was terminated under conditions other than dishonorable. Proof of such 100 per cent disability before the ordinary shall be established by a letter or other written evidence from the United States Veterans Administration, stating the degree of disability." (Emphasis supplied).
In view of the above code section I am of the opinion that pin ball machines come within the classification of pool tables or devices of like character and the operator would not be exempt from paying a business license to operate such machines, however, I am of the opinion that a veteran would be entitled to exemption from paying business license for the operation of juke boxes.
PUBLIC REVENUE-Licenses (Unofficial) There is no refund for the unused portion of time for which a five-year driver's license has been issued. July 5, 1951
Mr. R. W. Strange I am in receipt of your letter of June 25, 1951 in which you request my
unofficial opinion as to the possibility of a refund of the money for the balance of the number of years which a five-year driver's license has to run after June 30, 1951, at which time all driver's licenses in Georgia became permanent and free.
The provision of the Code, which permits the issuance of five-year licenses, expressly provides that no refund shall be made for any unused portion. Therefore if you discontinue use of said license you receive no refund.
There is also a general rule to the effect that no refunds may be made by the State or any department thereof without specific authorization therefor and since there has been no authorization for refunds on unused portions of fiveyear licenses, then the Director of Public Safety is without authority to issue such a refund.
For the above reasons it is my unofficial opinion that you are not entitled to a refund on your five-year license even though it does not expire until June 30, 1954.
PUBLIC REVENUE-Liens (Unofficial) The general tax lien law of the State of Georgia. March 9, 1951
Honorable H. J. Clifton In answer to your letter of February 9, 1951, in which you ask an inter-
pretation of the law regarding the release of property from the payment of the

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tax levied against a particular piece of property to the liability of property for taxes that is exempt under the Homestead Exemption Law. I will first give you the General T'ax Lien Law of the State of Georgia as found in Powell, Action for Land, pp. 263-266, Section 242:
"It may be said in general terms that a tax execution is the law's powe1 of attorney authorizing the sheriff to seize, sell and convey the legal title of all the property subject to the lien thereof, to such an extent as is necessary to pay the taxes and the costs. 'faxes are a debt of the highest dignity and the lien dates from the time when by law the property should have been returned for taxation. No sale of the property, private or judicial, can divest the State's lien after it has once attached.
"A common-law execution, it has been seen, authorized the sheriff to sell and convey only such interest in the property as the defendant named in the fi fa held therein at the date of the levy or between that date and the date on which the lien of the judgment attached. A tax execution may authorize a greater divesting and transfer of title.
"We may catch more clearly the notion of just how far the lien represented by the fi fa binds the property and authorizes a sale of it by recalling that a tax fi fa may operate either in personam or in rem, or somewhat in both capacities; also that it may be based upon a return of taxes by a person or upon an official assessment made on account of lack of return.
"Where there is a regular return for taxes by the owner and he fails to pay the taxes, and fi fa in personam is issued against him on the return, it binds all the property owned by the defendant in tax fi fa at the date of the return or at the date when by law the return should have been made, and all property then owned by him or acquired by him after that date may be levied on and sold under the fi fa (and such a sale will pass his entire title), whether the property was included in his return or not; and subsequent transfers of the property, whether by private or judicial sale, do not 'affect the matter,
"If the property be returned by the owner's agent or trustee or by a person occupying the premises for the owner, and the taxes assessable upon this return are unpaid and a fi fa is issued upon this return, it will bind the owner's estate in the property; and a regular sale thereunder will divest his title, though the execution issues in the individual name of the agent or trustee or occupant making the return, and though it includes, in part, taxes due by the agent or trustee individually. But if the return is not made by the owner himself and is made by an agent or occupant for him, the fi fa based upon the return cannot be levied upon other property belonging to the owner, but not so returned and the property omitted from the return should be treated as unreturned property, and the taxes collected from it accordingly.
"The estate of the life-tenant and of the remainderman are separate estates, and the life-tenant is not the agent for the remainderman. However, the life-tenant and his estate are liable for the tax on the entire property. Hence a tax execution issued against the life-tenant is a lien upon only his life estate (and such other property as he may own) and a sale under it does not pass the fee in remainder. This is an exceptional status; and the same rule does not apply when, through occupancy of the property, by contract or consent of the owner, or under a contract to pay the taxes on the property, a person other than the true owner returns the property, or execution is issued against him for lack of a return. In such cases the execution binds the fee.
"If the property be unreturned, a fi fa in personam against the true owner issued upon the assessment of the tax officer will, of course, authorize the sale

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of the land, so far as his title is concerned. If, however, the property is unreturned and a fi fa solely in personam is issued against one who is not the owner or occupant, though he be an agent of the owner, it will authorize the sale only of the agent's interest, if any; and no greater title will pass by the sale.
"If the property is unreturned, the tax officer may issue his fi fa against the supposed or apparent owner, or against the occupant of the property, and recite that it is for the tax on the particular unreturned property (describing it), thus giving the fi fa somewhat the quality of an execution in rem; and in that event the sale under the fi fa will pass the title of the true owner, though he is not named in the fi fa."
I refer you to Sec. 92-5712 of the Code of Georgia of 1933, Annotated, which provides as follows:
"Proportionate payments by owners, lienholders, etc.-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 allowed 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 (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 :mch 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 subdivision of this State (including municipalities and all other subdivisions of the State and counties) 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 releasing said property shall be paid a fee of 50 cents for issuing said receipt and release. This law shall apply to taxes accruing before its passage as well as to taxes accruing thereafter."
This section has been construed by the courts (Federal Land Bank v. Aldridge, 203, Ga. 285, 46 S.E. 2d, 578) that the word "property" embraces both realty and personalty. Under state and county taxation, a dual lien is given to said state and county on both real and personal property. By virtue of delinquency in payment of state and/ or county taxes, a lieu is acquired by state and county both in personam and in rem. If upon payment by a delinquent taxpayer of the taxes owed on realty, he is given a release as to that real property, said release being in rem and the state or county (whichever the case might be) retaining a lien in personam against said property for the remainder of tax owed on the personalty.
As to a lienholder, such can, as differs from the owner, pay the tax levied on realty to which his lien applies, and secure a release from all other tax indebted of the person from whom his iien was acquired.
In regard to your second question, concerning whether or not property exempt under our present Homestead Exemption statute can be held to collect tax on personalty, such exempt property is exempt from all tax levy and therefore cannot be the subject of any levy for delinquent taxes on personalty.

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PUBLIC REVENUE-Motor Fuel Tax Motor fuel used by vehicles in the construction of hgihways through virgin lands is fuel used on public highways and therefore not exempt from the Motor Fuel Tax. September 10, 1951
Honorable Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION QUESTION:
Is motor fuel used by vehicles in the construction of highways through virgin lands exempt from the Motor Fuel Tax Act? ANSWER:
According to the official opinions of two former Attorneys General, such motor fuel is not exempt from the tax. The October 7, 1937 opinion of M. J. Yoemans stated as follows:
"This definition is all inclusive and was evidently intended to embrace highways under construction, reconstruction or repair."
The November 30, 1940 opinion of Ellis Arnall stated as follows: "The petroleum products are used on the public highways when the same is used in a motor vehicle for construction, reconstruction, maintenance, or repairing of said highways." Both of these opinions point out clearly that motor fuel when used in the construction of highways is subject to the tax. One could hardly say that lands were virgin with trucks driving over them, or that they were not subject to motor vehicle travel, or that that part used by the trucks was anything but a public highway even though not, at that time, open to the public. Right-of-way deeds having been purchased, the ways are dedicated to public use. In conclusion, I would like to repeat the unquestioned rule for the interpretation of tax exemptions, that exemptions, being in derogation of the sovereign authority of the State, must be strictly construed against those claiming such exemptions. Therefore, I do not believe that the construction of a highway through virgin territory is an operation in which an exemption may be claimed under the Motor Fuel Tax Act.
PUBLIC REVENUE-Motor Vehicle License Tax 1. Each individual place of business selling motor vehicles within the State of Georgia is required to purchase a dealer's license plate. 2. It is not permissible to transfer a dealer's license plate from one dealer to another. March 7, 1951
Honorable W. L. Joiner, Assistant Director Motor Vehicle License Unit
OFFICIAL OPINION QUESTION:
(1) Jones and Company, are Motor Vehicle dealers at Griffin, Georgia and Newnan, Georgia. They handle the same make of cars at both places and the company is composed of the same personnel at both places; they use the same trade name-should they be required to buy two $25.00 tags-one for each town, or would they comply with the Motor Vehicle Law if they purchased one $25.00, and as many additional $1.00 tags as needed for both places?
(2) Under our Motor Vehicle Law, is it permissible to transfer dealer's license from one dealer to another?

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ANSWER: (1) Section 92-2903 of the Code of Georgia of 1933, Annotated, Supplement,
requires that manufacturers and dealers engaged in the manufacture, sale or leasing of motor vehicles shall register with the State Revenue Commissioner for distinguishing dealer's number, and this section reads as follows:
"92-2903. Registration and license of makers and dealers; additional tags.Manufacturers and dealers engaged in the manufacture, sale or leasing of motor vehicles or tractors shall register with the State Revenue Commission, making application for a distinguishing dealer's number, specifying the name and make of motor vehicle manufactured, sold, or leased by them, upon blanks prepared by the State Revenue Commission for such purposes, and pay therefor a fee of $25, which fee shall accompany such application, and for which said fee the State Revenue Commission shall furnish to said dealer two number plates, to be known as a dealer's number, and to be distinguished from the number plates herein provided for by a different and distinguishing color to be determined by the State Revenue Commission, with the word "Dealer" on same; dealer's number plates to be for the purpose of demonstrating or transporting dealer's vehicles for sale or lease. No dealer or manufacturer may use or permit to be used a dealer's number for private use or on cars for hire, or other manner not provided for in this section. In case dealers or manufacturers desire more than two tags, they shall so state on the application, and, in addition to the fee of $25 hereinabove provided, shall pay $1 for each and every additional number plate furnished.'' (Emphasis supplied).
Upon reading the above code section I am of the opinion that it was the intent of the Legislature to require each individual place of business that comes within the provisions of this section to purchase a dealer's license plate. It is believed that the purpose of this requirement was to require a distinguishing dealer's number for each establishment that sells motor vehicles within the State of Georgia and that it is immaterial if two or more separate establishments are under the ownership of one person or corporation.
(2) It is not permissible to transfer dealer's license plates from one dealer to another. Section 92-2907 of the Code of Georgia of 1933, Annotated, Supplement, describes the vehicles that tags may be transferred on and only the vehicles described in sub-section (3) to (14) of Section 92-2902 of the Code of Georgia of 1933, Annotated, Supplement, may be transferred. Therefore, dealers who are required to register under Section 92-2903, Supra do not come within the provisions of Section 92-2907, Supra and dealer's license plates can not be transferred.

PUBLIC REVENUE-Motor Vehicle License Tax The special automobile license tags for amateur radio station operators are not transferable from person to person.

Honorable W. L. Joiner Assistant Director Motor Vehicle License Unit

May 15, 1951

OFFICIAL OPINION QUESTION:
An Act was passed at the 1951 Session of the General Assembly (Georgia Laws 1951, p. 653), providing for special automobile license tags for amateur radio station operators. This Act provides that such tags shall be non-transferrable. A clarification of the word "non-transferrable" is requested.

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ANSWER: The Act provides that the tags issued thereunder shall contain the official
amateur radio call letters of the applicant for such tag in lieu of the numbers provided for other license tags. The basic purpose of this Act is to afford a means of identification of amateur radio operators in order that their services may be utilized in times of emergency. This purpose would be defeated if the license tags issued to such persons were transferred to another person and used on an automobile owned and operated other than by an amateur radio operator. I am therefore of the opinion that the General Assembly intended that such license tags, rather than being transferred to another person, should remain the property of the persons to whom they are issued.
PUBLIC REVENUE-Motor Vehicle License Tax 1. The Motor Vehicle License Unit is authorized to issue license plates to service men located in other states but who expect to transfer to Georgia. 2. The Revenue Commissioner or his agent may require a designated address. 3. The Unit is authorized to accept out-of-state addresses on corporations doing business in Georgia and using Georgia tags, or where reciprocal agreements require the registration of out-of-state vehicles. 4. Georgia residents in the Armed Services may get Georgia tags regardless of the state in which they are stationed.
July 9, 1951
Honorable W. L. Joiner Assistant Director Motor Vehicle License Unit
OFFICIAL OPINION QUESTIONS:
1. Would we be authorized, under the present motor vehicle law, to issue tags to boys in Service who are located in other states, but contemplate transfer to IGeorgia ?
2. If your answer is "yes", and for the purpose of keeping our record clear, should we require such applicants to give their contemplated Georgia address?
3. Often we have applications from non-resident Corporations who wish to register cars to be used by their salesmen in Georgia, but they ask permission to give their home state address. Would the Motor Vehicle Unit be authorized to accept out-of-state addresses, and should we require a "rider" similar to the following? : Form No. 21
Motor Vehicle License Unit 109 State Capitol, Atlanta, Ga.
In Re: Application Non-Resident: This is to certify that I have made application for Georgia license tag for _____ _ as described in application attached hereto, which will be used in Ga., temporarily. Name: ---------------------------- Address: -----------------------------Business: ------------------- "________ Ga. Agt. ---------------------------Whose address is-------------------------------------------------------Sworn to and subscribed Lefore me this --------------------------- Signed
Representative
Notary Public

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4. There are instances in which, under our reciprocal agreement, it is mandatory that non-resident owners obtain 'Georgia license tags. In such instances may we accept out-of-state addresses?
5. It is reported that there is a Federal Law authorizing boys in the Service to make application for license tags in whatever state they wish. Is this true?
ANSWERS:
1. Yes, you are authorized to issue motor vehicle license plates to boys in the Service who are located in other states, but contemplate transfer to Georgia.
2. The law does not require any specific address, however, it is within the discretion of the Revenue Commissioner or his authorized agent to require an applicant to give a designated address.
3. You would be authorized to accept out-of-state addresses on corporations doing business in Georgia who register their motor vehicles in the State of Georgia. You would have the right under the power given you by the Georgia Motor Vehicle Laws to require a "rider" similar to the one quoted above.
4. Yes, you are authorized to accept out-of-state addresses in cases where our reciprocal agreement requires the registration of the motor vehicle.
5. In answer to question 5, I refer you to Title 50 U.S.C.A., Section 574, which reads as follows:
"(1) For the purposes of taxation in respect of any person, or of his personal property, income, or gross incme, by any State, Territory, possession, or political subdivision of any of the foregoing, or by the District of Columbia, such person shall not be deemed to have lost a residenee or domicile in any State, Territory, possession, or political subdivision of any of the foregoing, or in the District of Columbia, solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, while, and solely by reason of being, so absent. For the purposes of taxation in respect of the personal property, income, or gross income of any such person by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, of which such person is not a resident or in which he is not domiciled, compensation for military or naval service shall not be deemed income for services performed within, or from sources within, such State, Territory, possession, political subdivision, or District, and personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession, or political subdivision, or district: Provided, that nothing contained in this section shall prevent taxation by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia in respect of personal property used in or arising from a trade or business, if it otherwise has jurisdiction. This section shall be effective as of September 8, 1939, except that it shall not require the crediting or refunding of any tax paid prior to October 6, 1942.
"(2) When used in this section, (a) the term 'personal property' shall include tangible and intangible property (including motor vehicles), and (b) the term 'taxation' shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: Provided, that the license, fee, or excise required by the State, Territory, possession or District of Columbia of which the person is a resident or in which he is domiciled has been paid.''

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PUBLIC REVENUE-Motor Vehicle License Tax 1. The Motor Vehicle License Unit may accept a statement to the effect that motor numbers are not available.
2. The Revenue Commissioner may promulgate rules and regulations concerning the issuance of motor vehicle licenses.
3. A motor number is usually a basis for identification, but is not necessarily
a basis when a new motor has been installed.

Honorable W. L. Burch, Director Motor Vehicle License Unit

December 6, 1951

QUESTIONS:

OFFICIAL OPINION

1. Is it permissible for the Motor Vehicle License Unit to accept a statement

to the effect that motor numbers are not available?

2. Are matters of this kind left within the discretion of the Motor Vehicle Commissioner to be worked out to the best advantage?

3. Is the motor a basis of registration and should motor numbers be furnished

when new motors have been installed?

ANSWERS:
1. It is permissible for the Motor Vehicle License Unit to accept a statement to the effect that motor numbers are not available. Also, you can require any additional information that you deem necessary in order that the motor vehicle can be properly identified. The purpose of all information is to properly identify a motor vehicle.
2. The head of the Motor Vehicle. License Unit, through the Commissioner of Revenue, has the authority to promulgate certain rules and regulations to be conformed with in issuing licenses. This is purely a discretionary matter.
3. A motor number is usually a basis of identification but in case of the installation of a new block where the number is not available, I think the unit would be authorized to note on the application the words, "New Motor Block."

PUBLIC REVENUE-Motor Vehicle License Tax A peace officer is a person designated by public authority, whose duty it is to keep the peace and arrest persons guilty or suspected of crime.

Honorable W. L. Joiner, Ass't Director, Motor Vehicle License Unit

December 6, 1951

OFFICIAL OPINION
FACTS: The Georgia Legislature of 1929 (Georgia Laws 1929, p. 1483) passed the
following resolution: "Whereas there is a great demand for a list of all the automobile owners of
the State, and considerable revenue may be derived by the State from the sale of the list of such owners:
Therefore be it resolved by the House, and the Senate concurring, that the Motor-Vehicle Commissioner of the State be and is hereby authorized and required to sell said list to the best advantage of the State, and that he be

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further authorized and required to charge for all reports furnished in regard to the license-numbers and motor-numbers on file in this office. That this resolution does not prevent giving information to the peace officers of the State. That all revenue raised hereunder shall be accounted for as other fees paid in said office. Approved August 27, 1929."
QUESTIONS: Under this Resolution, 1. What is the definition of the term "peace officers"? 2. Who would be classified as peace officers? 3. How far reaching could the term be applied? 4. Would peace officers of other states be entitled to this information free
of charge, or should out-of-state peace officers be charged for this information?
ANSWER: 1. A peace officer is a person designated by public authority, whose duty it is
to keep the peace and arrest persons guilty or suspected of crime. (31 W. & P., p. 532)
2, 3. Sheriffs, Deputy Sheriffs, police of the various cities and counties of the State of Georgia, and even the bailiffs of the various districts of the counties of the State of Georgia are classed as peace officers.
4. Peace officers outside of the State of Georgia should be required to pay the usual fee for any information obtained from your Department.
PUBLIC REVENUE-Rolling Store Tax A veteran is not entitled to a certificate of exemption on a rolling store where the tax is levied in the nature of a maintenance tax against the vehicle.
March 9, 1951 Honorable Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION QUESTION:
Is a veteran entitled to exemption from paying city and county tax on a rolling store ? ANSWER:
In the case of Chambers v. State, 60 App. 876, it was held that the rolling store tax as levied by the State of Georgia is not a personal tax nor business or occupational tax, but is a tax against the vehicle, therefore, following this decision if the county and city tax of a rolling store is in the nature of a maintenance tax against the vehicle and not an occupational or business tax, a veteran would not be entitled to an exemption from taxation but would be liable for any tax levied by the county or city in the nature of a maintenance tax against the vehicle used as a rolling store.
I am of the opinion that according to the facts as stated and the question propounded that it would be necessary to ascertain the language of the ordinance of the city or the working of the tax levy of the county in order to determine whether or not said tax was levied as a maintenance tax or as a business or occupational tax and as stated above the veteran would not be exempt from paying the tax if it is a maintenance tax, but if it is in the nature of a business or occupational tax he would be entitled to a certificate of exemption.

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PUBLIC REVENUE-Sales Tax Sales of goods made pursuant to bona fide written contracts entered into before the date of the approval of the sales tax act, where delivery is made within ninety (90) days, are exempt from the Sales Tax.
May 18, 1951 Mr. Albert Dozier Director of the Sales Tax Unit
OFFICIAL OPINION FACTS
A resident manufacturing corporation for several years has rented certain specialized machinery from a foreign corporation having an office in Georgia.
In 1950 a judgment was entered against the lessor corporation in a Federal District Court in California requiring the lessor to sell all of its leased equipment to the lessees and giving the lessees absolute priority to purchase whatever machinery they had under lease as of January 1, 1951. This notice was given the resident corporation in October, 1950. The lessor stated that it was impossible to arrange details of a purchase plan until sufficient time was allowed in order to work out a fair schedule and, therefore, arrangements were made to allow the lessees to lease the equipment from January 1 to April 30, 1951, while the purchase basis was being worked out.
In December, 1950 the purchase basis information was furnished the resident manufacturing corporation and before February 20, 1951 the managing officer of the resident corporation decided to purchase the machinery. QUE'STION:
Whether or not this transaction comes within the meaning of Section 3 (c) 2 (e) of the Georgia Retailers' and Consumers' Sales and Use Tax Act. ANSWER:
Section 3 (c) 2 (e) of the Georgia Retailers' and Consumers' Sales and Use Tax Act provides:
"The tax levied by this Act shall not apply to sales of goods made pursuant to bona fide written contracts entered into before the date of the approval of this Act ... , provided delivery is made within ninety (90) days."
It is my opinion that the order of the Federal District Court converted the machinery contract into a conditional sales contract, that is a lease with an absolute option to purchase. This conditional sales contract was, therefore, effective prior to February 20, 1951.
Assuming that the option was validly exercised prior to February 20, 1951, then it is my opinion that the order of the Federal District Court together with the lease and the written exercise of the option amount to a "bona fide written" contract within the meaning of the Act.
If these qualiifcations and evidentiary papers can be met and shown, then such a purchase is not taxable.
PUBLIC REVENUE-Sales Tax The 90 day provision for the delivery of goods under bona fide and written contracts becomes effective on the effective date of the Sales Tax Act.
May 1, 1951 Honorable William M. Lester Deputy State Revenue Commissioner
OFFICIAL OPINION QUESTION:
When is the effective date of the 90 day provision for the delivery of goods

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~
and materials under bona fide written contracts entered into before the date of approval of the Sales and Use Tax Act?
ANSWER: Section 3-2 (e) referred to in your letter provides that:
" (e) The tax levied by this Act shall not apply to sales of goods made pursuant to bona fide written contracts entered into before the date of the approval of this Act, or the purchase price of any buildings supplies, fixtures or equipment that enter into or become a part of building or other kind of structure in this State, where plans, specifications and construction contract for a specific project has been entered into prior to the date of approval of this Act, provided delivery is made within ninety (90) days."
It is my opinion that the legislature intended for the 90 day delivery date to become effective upon the effective date of the Act itself, which was April 1, 1951.

PUBLIC REVENUE-Sales Tax Contracts to be exempt under the sales tax must be two kinds: (1) either written, or (2) for construction materials.

Honorable William M. Lester Deputy Commissioner of Revenue

October 3, 1951

OFFICIAL OPINION
QUESTION:
How should Section 3 (c) 2 (e) of the recently enacted Georgia Retailers' and Consumers' Sales and Use Tax Act be applied to certain contracts for industrial power entered into by Georgia manufacturers with various electric and gas power companies throughout the State of Georgia, said contracts being commonly known as "dump," "interruptable," etc., which indicates the indefiniteness of the monthly consumption by the manufacturers?
ANSWER: It is to be noted first that Section 3 (c) 2 (e) of the recently enacted
Georgia Retailers' and Consumers' Sales and Use Tax Act specifically exempts two kinds of contracts and two kinds only:
(1) "bona fide written contracts entered into before the date of the approval of this Act," and
(2) "the purchase price of any buildings supplies, fixtures or equipment that enter into or become a part of building or other kind of structure in this State, where plans, specifications and construction contract for a specific project has been entered into prior to the date of approval of this Act."
It must also be kept in mind that tax exemptions, being in derogation of the power of the sovereign, must be strictly construed, that is, must be expressly set out and not be left to inference.
It, therefore, seems unquestionable that contracts for the supply of gas or electricity for the operation of industrial machinery, since they are not made in connection with any building construction contract, must necessarily be bona fide and written before the date of approval, February 20, 1951, of the Act in order to claim any exemption. There is no doubt that the legislators meant this provision to be in prospect, that is, they meant by bona fide contract on February 20, 1951, one that would be binding as to time and amount on looking

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forward from that date. In order that this provrswn might be administered fairly to the taxpayer and to the State, it was also provided that the contract must be written.
This now leaves the construction of these contracts in a clear and unquestionable status. All that need be determined from the written terms of the contracts are for what period of time were they binding on both parties and for what amount were they binding on both parties on Feruary 20, 1951?
If the contract can be terminated by notice, then only that period of notice is binding between the parties on February 20, 1951. If the a.mount to be delivered or requested and that which might be lawfully required to be accepted or might lawfully be demanded differ, then that which is lawfully binding as to the amount, that is, that which may be demanded and that which must be accepted is the amount which is exempt as it was binding on February 20, 1951.
Although the terms of the contract can not be interpreted in retrospect for exemption purposes, that material which is exempt must necessarily be considered in retrospect since the last phrase of Section 3 (c) 2 (e) of the Act states:
"provided delivery is made within ninety (90) days," which has been interpreted to mean ninety days from the date when the Act became effective, to-wit, April 1, 1951. The only consideration to be made in retrospect is-was the delivery of the goods, which were to be delivered according to the terms of the contract on February 20, 1951, made within the ninety days from April 1, 1951?
It is my opinion that the application of the foregoing requirements to each contract of this type in question will give the correct amount of exemption as provided in Section 3 (c) 2 (e) of the Georgia Retailers' and Consumers' Sales and Use Tax Act. Since the exemption will vary as to time and amount, each contract must be considered separately.
PUBLIC REVENUE-Sales Tax Contractors of Federal, State, County and municipal Governments are consumers of the goods purchased and therefore must pay the sales tax thereon.
May 1, 1951
Mr. Albert Dozier Director of the Sales Tax Unit Department of Revenue
OFFICIAL OPINION QUESTION:
Whether or not contractors of Federal Housing Administration, City and County Housing Authorities, Electric Cooperatives, Federal, State, County and municipal Governments, their agencies and authorities, etc. are retuired to pay the tax imposed by the Georgia Retailers' and Consumers' Sales a,nd Use Tax Act on the purchase of goods, materials, and supplies which go into the performance of such contracts.
ANSWER: It is my opinion that such contractors .are the consumers of the goods,
materials and supplies purchased and that they must pay the tax imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act on such purchases.

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PUBLIC REVENUE-Sales Tax (Unofficial) An individual is not exempt from the sales tax even though the government agency with which he is contracting might have such exemption.
September 11, 1951 Blue Bird Body Company
In response to your letter of September 1, 1951, l'aising the question of sales tax liability to an indiivdual who purchases a bus from you, who has a contract with the County to transport school children exclusively, it is my opinion that the individual purchasing such a bus in his own name is liable for sales tax.
Therefore, it is my opinion that you should collect this tax on such sales. Although my opinion in this letter must be considered personal and unofficial as required by law since my official authority is restricted by law to interpretations for the various Department Heads, the opinion that I express in this letter is in accord with official opinions which I have rendered to the Revenue Department concerning similar sitlations, an individual who purchases even though he is under contract with some governmental agency, does not receive any immunity in himself which that govermental agency might have.
PUBLIC REVENUE-Sales Tax Contractors who contract with the U. S. Government under a cost-plus-afixed-fee contract are taxable under the Sales Tax on materials, supplies and equipment purchased.
April 30, 1951 Mr. Albert Dozier Director of the Sales Tax Unit Department of Revenue
OFFICIAL OPINION QUESTION:
Is tangible personal property purchased for use under the terms of a costplus-a-fixed-fee contract with the U. S. Government taxable under the 'Georgia Retailers' and Consumers' Sales and Use Tax Act?
ANSWER: Under the authority of the State of Alabama v. King and Boozer, 314 U. S. 1,
such material, supplies and equipment purchased by such contractor for the performance of a cost-plus-a-fixed-fee contract are taxable under the Sales Tax Act.
PUBLIC REVENUE-Sales Tax National Banks created under Title 12 United States Code are exempt from the paylfEmt of the sales tax.
May 10, 1951 Honorable Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION QUESTION:
Whether National Banks created under T'itle 12 of the United States Code :are exempt from the payment of the State sales and use taxes. ANSWER:
Section 3-2 (d) of the Georgia Retailers' and Consumers' Sales and Use

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Tax Act provides that " 'retail sale' and 'sale at retail' shall also not include the following: Sales which a State would be without power to tax under the limitations of the Constitution of the State or of the United States ...".
In the early case of Owensboro National Bank v. The City of Owensboro, 19 S. Ct. 537, 173 U. S. 664, the Court Stated that the early history of the cases involving the banks of the United States indicates that they have been declared agencies of the government. Then the Court quoted Davis v. the Bank, 16 S. Ct. 503, 161 U. S. 283, saying:
" 'National Banks are instrumentalities of the Federal government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States. It follows that an attempt by a State to define their duties, or control the conduct of their affairs, is absolutely void, wherever such attempted exercise or authority expressly conflicts with the laws of the United States, and either frustrates the purpose of the national legislation or impairs the efficiency of these agencies of the Federal government to discharge the duties for the performance of which they were created. These principles are axiomatic, and are sanctioned by the repeated adjudications of this court.' "
Title 12-548 of the United States Code provides in part as follows: "The several states may (1) tax said shares, or (2) include the dividends derived therefrom in the taxable income of the owner or holder thereof, or (3) tax such association of their net income, or (4) according to or measured by their net income ... ", provided, such taxation complies with certain rules and regulations set up relating thereto. It has been held that this section by its plain and unambigious terms confines the power of the State to a taxation of the shares of National Banks in the manner prescribed and does not authorize any other type of taxation which is not in conformity with these requirements. Des Moines National Bank v. Fairweather, 263 U. S. 103, 44 S. Ct. 23; First National Bank v. Anderson 269 U. S. 341, 46 S. Ct. 135; Linton v. Childs, 105 Ga. 567, 32 S. E. 617.
The more recent case of M. C. West Company v. Johnson (1937), 20 Cal. App. (2d) 95, 66 P. (2d) 1211, in which the Supreme Court twice denied certiorari, held that the sales tax, when applied to sales of office furniture to a Federal Land Bank, a governmental instrumentality, was unconstitutional under the doctrine of implied immunity. While this case did not involve a National Bank it did involve a bank which has been declared a Federal instrumentality as have National Banks and it is my opinion that the same ruling would be applied to National Banks.
However, it must be remembered that this immunity granted to National Banks is restricted to the operation of the bank in doing a banking business and should not include the operations of the bank which are non-banking operations. Graves v. Texas, 298 U. S. 393, 56 S. Ct. 818.
National Banks organized under Chapter 12, United States Code, are federal instrumentalities and fall within the provisions of Section 3-2 (d) above quoted. I am of the opinion that such banks are exempt from the payment of the sales and use tax on purchases by such banks necessary for banking operations.

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PUBLIC REVENUE-.:..Sales Tax Federal Reserve Banks are exempt from the sales tax.
May 8, 1951 Mr. Albert Dozier Director of the Sales Tax Unit Department of Revenue
OFFICIAL OPINION QUESTION:
Whether or not Federal Reserve Banks are taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act. ANSWER:
Under paragraph 3, section 7 of the Federal Reserve Act, Federal Reserve Banks are exempt from all taxes, Federal, State and local, except taxes upon real estate.
It is my opinion that this Act of Congress exempts Federal Reserve Banks from the payment of taxes which otherwise might be due under the Georgia Retailers' and Consumers' Sales and Use Tax Act.
PUBLIC REVENUE-Sales Tax Post Exchanges are Federal instrumentalities and cannot be required to collect the sales tax from their vendees.
May 1, 1951 Honorable Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION QUESTION:
Whether or not Post Exchanges can be required to collect taxes levied under the !Georgia Retailers' and Consumers' Sales and Use Tax Act from their 'Vendees. ANSWER:
Army, Air Force and Navy Exchanges are Federal instrumentalities and as such are not subject to the tax levied by the Georgia Retailers' and Consumers' Sales and Use Tax Act.
However, the question is whether or not they can be required to collect sales tax due by their customers, both civilian and military, to the State of Georgia on the sale of tangible personal property. "The Buck Amendment" to the Hayden-Cartwright Act of June 30, 1947, 61 Stat. 641, Title 4, USCA 105, et seq., provided, in general, that sales, use and income taxes apply to transactions and persons in Federal areas. However, Section 3 (a) of this Act states in part that "The provisions of ... this Act shall not be deemed to authorize the levy or collection of any tax on or from the United States or any instrumentality thereof, or the levy or collection of any tax with respect to sale, purchase, storage, or use of tangible personal property sold by the United States or any instrumentality thereof to any authorized purchaser. (b) A person shall be deemed to be an authorized purchaser under this Section only with respect to purchases which it is permitted to make from commissaries, ships, ship's stores or voluntary unincorporated organizations of army or navy personnel under regulations promulgated by the Secretary of War or the Secretary of Navy." (Emphasis supplied).
It is abundantly clear that the State of Georgia can not req:lire these exchanges to register and collect the State Sales T'ax, and since such exchanges

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refuse to cooperate on a voluntary basis the burden of paying the tax falls upon their vendees who must report and pay on a use tax basis on the tangible personal property purchased in the Federal area for use outside such a-rea. This will necessitate an additional police burden on the Department of Revenue and it is recommended that the Department proceed without delay to institute criminal actions against all persons failing to report and pay use taxes due under the Georgia Retailers' and Consumers' Sales and Use Tax Act.
It is my opinion that this procedure is vital to the protection of privately owned businesses who will be placed at a competitive disadvantage because of this non-cooperative attitude of these Federal instrumentalities.
PUBLIC REVENUE-Sales Tax Officers Clubs and Non-Commissioned Officers Clubs are not in the same category as Post Exchanges and are, therefore, subject to the Sales Tax.
May 14, 1951 Mr. Albert Dozier Director of the Sales Tax Unit Department of Revenue
OFFICIAL OPINION QUESTION:
Whether or not Officers Clubs and Non-Commissioned Officers Clubs are in the same category as Post Exchanges and therefore exempt under an official opinion rendered by me to the Honorable Charles D. Redwine May 1, 1951. ANSWER:
It is my opinion that Officers Clubs and Non-Commissioned Officers Clubs are not in the same category as Army, Navy and Air Force Exchanges, are not Federal instrumentalities and, therefore, are subject to the Georgia Retailers' and Consumers' Sales and Use Tax Act.
PUBLIC REVENUE-Sales Tax Subject to certain qualifications, Production Credit Associations under Title 12 of the United States Code are exempt from the Sales Tax.
May 25, 1951 Honorable William M. Lester Deputy State Revenue Commissioner
OFFICIAL OPINION QUESTION:
Whether Production Credit Associations created under Title 12 of the United States Code are exempt from the payment of the State Sales and Use Taxes. ANSWER:
Section 3-2 (d) of the Georgia Retailers' and Consumers' Sales and Use Tax Act provides that: " 'a retail sale' and 'sale at retail' shall also not include the following: Sales which a State would be without power to tax under the limitations of the Constitution of the State or of the United States "
Title 12 U.S. C. A. 1138 (c) provides, in part, as follows: "The Central Bank Cooperative, and the Production Credit Corporations, Production Credit Associations, and Banks for Cooperatives organized under this Chapter and their obligations, shall be deemed to be instrumentalities of the United States, . . . such banks, associations and corporations, property, franchises, capital, reserves, surplus and other funds and their income shall be

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exempt from all taxation now Ol' hereafter imposed by the United States or by any State, territorial, or local taxing authority; ... ".
The Production Credit Associations being deemed Federal instrumentalities are, therefore, exempt from the 'Georgia Retailers' and Consumers' Sales and Use Tax by the section above quoted.
However, such exemption is restricted by the following language: "The exemption provided herein shall not apply with respect to any Production Credit Association or its property or income after the stock held in it by the Production Credit Corporation has been retired, or with respect to the Central Bank of Cooperatives, or any Production Credit Corporation or Bank for Cooperatives, or its property or income after the stock held in it by the United States has been retired". 12 U. S. C. A. 1138 (e). Should any Production Credit Association come within this last quoted provision, then it shall be liable for taxes imposed by the Georgia Retailers' and Consumers' Sales and Use T'ax Act.
Therefore, it is my opinion, subject to the qualifications herein set out, that Production Credit Associations are exempt from the payment of taxes imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act.
PUBLIC REVENUE-Sales Tax National Farm Loan Associations created under Title 12 of the United States Code are exempt from the Sales Tax.
May 25, 1951 Honorable William M. Lester Deputy State Revenue Commissioner
OFFICIAL OPINION QUESTION:
Whether National Farm Loan Associations created under Title 12 of the United States Code are exempt from the payment of the State Sales and Use Taxes. ANSWER:
Section 3-2 (d) of the Georgia Retailers' and Consumers' Sales and lJ se Tax Act provides that: " 'a retail sale' and 'sale at retail' shall also uot include the following: Sales which a State would be without power to tax under the limitations of the Constitution of the State or of the United States ... ".
In the case of Knox National Farm Loan Association, et al v. Phillips, i"100 U. S. 194, 57 Sup. Ct. 418, the court stated that " ... a National Farm Loan Association is an instrumentality of the Federal Government ...".
Title 12 U. S. C. A. 931 provides, in part, as follows: "Every Federal Land Bank and every National Farm Loan Association, including the capital and reserve or surplus therein and the income derived therefrom, shall be exempt from Federal, State, municipal and local taxation ... ".
In the case of Federal Land Bank v. Bismark Lumber Company, 314 U. S. 95, 62 Sup. Ct. 1, the Court said: "The unqualified term 'taxation' used in Section 26 (codified as 12 U. S. C. A. 931) clearly encompasses within its scope a sales tax such as the instant one ...". The North Dakota sales tax act was before the Court and that statute is the same type sales and use tax act as the Georgia Retailers' and Consumers' Sales and Use Tax Act. This case involved a Federal Land Bank but the same exemption is accorded National Farm Loan Associations by provisions of 12 U.S.C.A. 931.
Therefore, it is my opinion that National Farm Loan Associations are not liable for taxes imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act in their operations as such.

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PUBLIC REVENUE-Sales Tax Federal Savings and Loan Associations created under Title 12 of the United States Code are not exempt from the Sales Tax.
May 25, 1951 Honorable William M. Lester Deputy State Revenue Commissioner
OFFICIAL OPINION QUESTION:
Whether Federal Savings and Loan Associations created under Title 12 of the United States Code are exempt from the payment of the State Saies and Use Taxes. ANSWER:
The Federal Savings and Loan Associations' tax exemption appears in 12 U.S.C.A. 1464 (h) as follows:
" ... and no State, T'erritorial, county, municipal, or local taxing authority shall impose any tax on such associations or their franchise, capital, reserves, surplus, loans, or income greater than that imposed by such authority on other similar local mutual or cooperative thrift and home financing institutions."
Section 16-427 of the 1933 Code of !Georgia, Annotated, Supplement, reads as follows:
"No State chartered association, as defined by this chapter, shall be assessed or subjected to taxation by the State, any county, municipality or other political subdivision taxing authority, on its franchise, capital, reserves, surplus, loans, shares, or accounts; except that any real property and any tangible personal property not hereinbefore specifically mentioned, which may be owned by it, shall be subject to taxation to the same extent, according to its value, as all other real and tangible personal property is taxed. The foregoing section shall also apply to all Federal savings and loan associations with a home office located within this State."
The taxes imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act must be paid by the local associations as contemplated in 12 U.S.C.A. 1464 (h) and since the above quoted Federal tax exemption does not prohibit a State from Taxing the Federal Savings and Loan Association so long as they are not 'taxed greater than State Associations, it is my opinion that since associations organized under the provisions of Chapter 16-4 of the 1933 Code of Georgia, Annotated, Supplement, are liable for taxes imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act, then Federal Savings and Loan Associations are also liable.

PUBLIC REVENUE-Sales Tax The Office of Price Stabilization has no authority to impose an arbitrary bracket system for the sales tax since these collections are not a portion of the sales price within the meaning of the Defense Production Act of 1950.

Honorable Charles D. Redwine State Commissioner of Revenue

August 17, 1951

OFFICIAL OPINION QUESTION:
Does the Office of Price Stabilization have authority to impose an arbitrary bracket system in conflict with the Georgia Retailers' and Consumers' Sales Tax Act.

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ANSWER: Collections of the Georgia Retailers' and Consumers' Sales and Use Tax
under a voluntary bracket system resulting in the collection and payment to the State of three percent, or in excess of three percent, are deemed to be taxes collected in compliance with the State law. Such collections are not deemed to be a portion of the sales price within the meaning of the Defense Production Act of 1950, and are therefore not subject to regulations by the Office of Price Stabilization.
PUBLIC REVENUE-Sales Tax (Unofficial) The 0. P. S. bracket system may be followed in the collection of the Georgia Sales Tax.
August 27, 1951 Mr. E. F. Ferguson
In reply to your letter of August 18, 1951, it is my opinion that you may adopt the 0. P. S. bracket system if you so desire. Neither the IGeneral Assembly nor the Revenue Department has adopted or authorized a bracket system.
Mr. Redwine, Commissioner of Revenue, is collecting either three per cent on the gross receipts from the sale of tangible personal property or the amount actually collected as a sales tax, whichever is greater, as prescribed in the Sales and Use Tax Act.
PUBLIC REVENUE-Sales Tax There is no intention in the Sales Tax Act to levy a tax on bona fide interstate commerce.
May 18, 1951 Honorable William M. Lester Deputy State Revenue Commissioner
OFFICIAL OPINION QUESTION:
Is there a sales tax on bona fide interstate commerce? ANSWER:
The Act states there is no intention to levy a tax on tangible personal property imported into Georgia, produced in Georgia or manufactured in Georgia for export and there is a further statement to the effect that it is not the intention of the Act to levy a tax on bona fide interstate commerce.
This portion of the Act (Section 4) would seem to indicate that the entire field of tangible personal property is here included and that there could be no other classification of tangible personal property. However, this ~ection also indicates that the tangible personal property must be for export. It is thought that this provision does not, and perhaps cannot, require the existence of an intention to export at the time of importation, production or manufacture. Rather would it seem to mean that the first use of the property is to be made outside the State. This intention to export would have to be, of necessity, an intention at the time of purchase in Georgia.
The fact that such tangible personal property for export might actually be delivered to a common carrier in Georgia under an F.O.B. shipment and therefore, result in title passing in Georgia would not be considered, for the purposes of this Act, a ;Georgia sale but rather an interstate sale.

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For example: 1. A resident of this State purchases merchandise and at the time of making the purchase requests that the merchandise be delivered to another party by mail or carrier in another state. 2. A purchase of merchandise made by a non-resident, who at the time of making such purchase, takes immediate delivery. 3. A purchase of merchandise made by a non-resident of the State, who at the time of making the purchase, requests that it be delivered to him by mail or carrier to his address in another State. 4. Purchase of merchandise made by a non-resident by ordering from another State, having the merchandise delivered to himself at his address in the other State. It is my opinion that the first two examples are examples of Georgia sales and, therefore, sales which are subject to the three per cent tax levied by our Act. Examples three and four represent interstate sales and are not subject to the sales tax.
PUBLIC REVENUE-Sales Tax Common carriers are subject to the sales tax on materials and supplies used or bought for use in both intrastate and interstate commerce, but only in the proportion of the Georgia intrastate business of the carrier to its total Georgia business.
July 2, 1951
Honorable Charles D. Redwine Commissioner, Department of Revenue Atlanta, Georgia
OFFICIAL OPINION QUESTION: Is a common carrier engaged in both intrastate and interstate commerce subject to the sales tax on repair parts, materials and supplies used in performing its service of transporting passengers and freight, and, if so, to what extent: that is, whether the full amount of the tax is collectible, or only that portion properly attributable to its Georgia intrastate business? ANSWER: It may be said, at the outset, that the sales tax, as laid by the Act, is a tax upon the vendee (or user in the case of the use tax), not upon the vendor, so it is not necessary to consider whether the State could tax a vendor for the privilege of selling even though the vendee bought for a purpose beyond the reach of the taxing power of the State. It may also be said that the power of the State to tax a sale within its borders, or the use of property wholly within the State, is generally upheld by the courts. Thus a State may tax the sale or use of tangible personal property within its borders, even though such property may be gainfully employed only in interstate commerce or wholly within another State, if the taxable event precedes the employment in interstate commerce, or the exportation to the other State. Thus it has been said that a State may impose a tax upon the storage and withdrawal of gasoline, even though, after the incidence of the tax, it is used as an instrument of interstate commerce. N. C. & St. L. Ry. v. Wallace, 288 U. S.. 249, 77 L. ed. 730; Edelman v. Boeing Air Transport, 289 U. S. 249, 77 L. ed. 1155.
But a State may not tax the use of tangible personal property if the use or employment of the property is exclusively in interstate commerce. Belson v.

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Kentucky, 279 U. S. 245, 73 L. ed. 683; Bingaman v. Golden Eagle Lines, 297 U. S. 626, 80 L. ed. 928.
In Helson v. Kentucky, the Supreme Court of the United States held that the State could not tax the use of gasoline to propel a ferry boat in interstate commerce. In the Bingaman case, the Court said the gasoline used in propelling a motor bus in interstate commerce could not be taxed.
In Thompson v. Eastern Air Lines, Inc., 200 IGa. 216, the Supreme Court of Georgia, citing the cases mentioned above, construed the "use" of gasoline taxed by the gasoline tax act of 1937 as having the natural and ordinary meaning of the use to consume it by combustion in a motor, and said that where such consumption was for the purpose of propelling an airplane in interstate commerce, the "use" was not taxed by the Georgia law. The language of the Court is: "The law does not impose the tax claimed, and the assessment offends the due process clause of the Federal and State Constitutions, as held by the trial court, and is void." (Emphasis supplied)
Having in view the constitutional limitations dealt with in the cases mentioned, what, properly, is the meaning of the Georgia sales tax act?
While the tax levying sections of the Act lay a tax of 3% upon "retail sales," and define the words, anq a tax of 3% of the cost price of tangible personal property not sold but used, consumed, distributed or stored for use or consumption in the State, so that, under authority of N. C. & St. L. Ry. v. Wallace, supra, it could be said, nothing more appearing, that the incidence of the tax preceded any subsequent use in interstate commerce of property sold in Georgia, or, if not sold, used as the term is defined, still the Act does not stop there, but goes further and declares by Section 4 that it does not intend to tax bona fide interstate commerce. The language is:
"It is not the intention of this Act to levy a tax upon articles of tangible personal property imported into this State or produced or manufactured in this State for export, the repairing or storage of such property in the State for use in another State, nor is it the intention of this Act to levy a tax on bona fide interstate commerce."
The last clause "nor is it the intention of this Act to levy a tax on bona fide interstate commerce" must be given effect. It cannot be disregarded, or read out of the law.
A statute levying taxes must be construed as a whole, just as any other statute, and although exceptions or exemptions are to be construed most strongly in favor of the State, the statute as a whole, and in so far as it lays taxes, must be construed most strongly against the State. Savannah v. Hartridge, 8 Ga. 23; Vincent v. Poole, 181 Ga. 718; Forrester v. Interstate Hosiery Mills, 194 Ga. 863. The rule of strict construction was applied in Thompson v. Eastern Air Lines on the direct question whether a tax laid upon the "use" of gasoline taxed a use in interstate commerce.
It seems clear, therefore, that, giving to the words of the declaration that it is not the intention of the act "to levy a tax on bona fide interstate commerce," their ordinary signification, as is required by statute (Code 102-102), they must be taken to qualify and limit the general language of Section 2, which lays the tax, and the general and definitive language of Section 3. Any other conception would deny to these words all meaning.
Giving the words their ordinary signification, and seeking to arrive at the intention of the General Assembly from the language of the entire Act, it seems clear that the declaration of intention just referred to could only be construed to mean that the taxes imposed by section two are not to be imposed if the result is to tax bona fide interstate commerce.

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In this view, it seems necessary to consider the meaning of the words "bona fide interstate commerce." The words "interstate commerce" are used generally to denote activities or things falling within the power conferred upon the Congress by clause 3 of Section 8, Article 1, of the Constitution of the United States "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
It was long ago determined that the words "interstate commerce" are not limited in their meaning to passage from one State to another, but that the power and control given to Congress by the Constitution extend to the instrumentalities whereby interstate commerce is carried on or facilitated. Thus our Supreme Court held in Wrought Iron Rank Co. v. Johnson, 84 Ga. 754, that a peddler could not be required to pay the peddler's license fee exacted by a county, when the orders he took were to be filled by the shipment of cooking stoves from another State; and the Supreme Court of the United States in Furst v. Brewster, 282 U. S. 493, 75 L. ed. 478, said: "Such commerce comprehends all the component parts of commercial intercourse, between different States . "
"In the case of railroads, the tracks, terminals, switches, stations, cars, engines, and all appliances and equipment, when employed as component parts of a general system engaged in interstate traffic, are instrumentalities of interstate commerce within the scope of Congressional legislation." 12 C. J. p. 38,
41; 15 c. J. s. p. 326, 39.
The same rule necessarily applies with like force to air lines, and other common carriers engaged in interstate traffic.
It thus seems clear that when consideration is given to the nature of the tax-a sales tax measured by the cost or sale price of tangible personal property -and when consideration is given to the fact that interstate commerce includes the instrumentalities whereby it is carried on, the declared purpose not to "levy a tax on bona fide interstate commerce," can only mean that the tax which might otherwise be payable is not levied or laid with respect to tangible personal property whereby interstate commerce is carried on.
With respect to tangible personal property, whereby intrastate commerce is carried on, the general language of Sections 2 and 3 is not limited or modified by that of Section 4. It seems equally clear that tangible personal property used indiscriminately in both interstate and intrastate commerce, as is the case with practically all tangible personal property purchased or used by common carriers, is to be taxed only insofar as it is used in intrastate commerce; that is, the sale or use tax with respect to such property is to be apportioned to the intrastate use. No other interpretation seems rational when, as here, the Act lays a tax, and declares that it does not intend thereby to tax bona fide interstate commerce.
The Act makes no provision for apportionment, but it does, by Section 21, provide that the Commissioner shall have power to make and publish reasonable rules and regulations for the collection of revenue thereunder. Such a grant of authority has been held sufficient to authorize the adoption of an apportionment formula.
In State Revenue Commissioner v. Edgar Brothers Co., 185 Ga. 216, the Supreme Court had under consideration the income tax act of 1929. That Act, as this Act, made no provision for apportionment. That Act, as does this Act, conferred upon the Commissioner power "to make all necessary regulations for carrying out the provisions of this Act, provided the same are not in conflict with any substantial legal right of the taxpayer resulting therefrom."

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The Court said the power thus conferred was sufficient to authorize the administrative authorities to adopt a formula of apportionment.
That case related to the income tax act of 1929, which taxed every person, firm or corporation residing or doing business in the State. It required every such taxpayer to file a duplicate of its federal return, ascertaining net income in the same manner (allowing for certain changes not here material) and pay a tax thereon at the rate of one-third of that payable to the United States. It made no provision for apportionment, or for ascertaining the net income attributable to business done within the State by corporations engaged in business within and without the State. It did, however, provide that a non-resident corporation doing business in Georgia, but making its income tax return in some other State, should file an original return to :Georgia "confined to its business done in this State, upon like principles as are in this section above provided."
Nothing else in the Act even alluded to apportionment.
The taxpayer contended that the phrase "confined to its business in this State," meant that it could be taxed only upon its net income derived from business done wholly within the State, and that it could not be taxed at all upon any portion of the net income derived from clay mined in Georgia but shipped to, further processed and sold in other States. It argued that since the State could not constitutionally tax income earned in other States, or in interstate commerce, and since there was no formula of apportionment provided by the Act whereby the proportion of its income attributable to property owned and business done in Georgia could be determined, it could not be taxed at all except upon net income from activities entirely within the State. (It paid only upon income earned by operating a commissary.)
The trial court and the Court of Appeals (State Revenue Commission v. Edgar Brothers Co., 55 Ga. App. 505) agreed with the taxpayer. The Supreme Court granted certiorari and reversed the Court of Appeals, holding that the language "confined to its business done in this State" did not limit the tax to the net income from activities wholly within Georgia, but that the Act as a whole intended to tax a foreign corporation upon that proportion of its entire net income attributable to property owned or business done in Georgia. The Court further held that the power to make rules and regulations included the power to adopt and enforce an apportionment formula, where the taxpayer had not apportioned. As a matter of fact, the Commission had adopted an apportionment formula in its rules and regulations.
The Edgar Brothers case was again considered by the Court of Appeals in 60 Ga. App. 482, and by the Supreme Court of the United States on application for certiorari (303 U. S. 626, 82 L. ed. 1088), but the ruling by the Supreme Court of Georgia remained unimpaired.
Since it seems clear that the declaration of our sales tax act that it does not intend to tax bona fide interstate commerce must be given effect, and since it is not to be assumed that the legislature did not thereby intend to disclaim a power it never possessed-to directly burden interstate commerce-the language must necessarily be construed to relate to those instrumentalities of interstate commerce the sale or use of which would otherwise be taxed.
It must therefore be concluded that the purpose was not to exempt such articles altogether, but to tax their sale or use by the measure provided by the Act, but in proportion to their use in intrastate commerce. In other words, that the language of the Act, generally taxing the sales or use of tangible personal property, but denying an intent, not to burden, but to tax bona fide interstate ,commerce, should be given the same effect as the provision of the income tax

405
act of 1929, generally levying a tax of one-third of the federal tax but saying that the returns of foreign corporations should be confined to business done in Georgia.
State Revenue Commission v. Edgar Brothers Co. is ample authority for holding that the commissioner may adopt a formula of apportionment.
It must be concluded, therefore, that common carriers, such as airlines, railroads, and motor common carriers, are subject to the tax upon the sale or use of fuel, materials and supplies, including repair parts, used or bought for use in both intrastate and interstate commerce, only in proportion to the intrastate use of such commodities, and that the tax should be apportioned to the State in the ratio of the Georgia intrastate business of the carrier to its total Georgia business.
When such articles or commodities are used exclusively in intrastate commerce, the tax should be applied to the entire sale price or cost.
It is recognized that in other States similar laws have been given a different interpretation, but in none of those States did the Act contain the broad statement of intention not to tax interstate commerce which is in the Georgia Act.
Cases from other jurisdictions have related to legislative power. The question here is as to the proper interpretation of the Act. What has been said above seems to reach the legislative intent, as determined from the entire Act, which, after all, is all that should properly be considered.
PUBLIC REVENUE-Sales Tax 1. A common carrier does not have to pay a sales tax based on the compensation paid for loss or damage of property in its possession. 2. There is no sales tax on compensation paid to gasoline dealers for a loss of stock in storage.
July 17, 1951
Honorable William M. Lester Deputy Commissioner Department of Revenue
OFFICIAL OPINION QUESTIONS:
1. Does the sales and use tax apply to compensation paid by common carriers to their customers for loss and damage of property while in the possession of said carrier'?
2. Does the sales and use tax apply to the compensation paid to gasoline dealers for loss of stock in storage'?
ANSWER: 1. It is my opinion that compensation paid for articles lost or damaged in
shipment should not be taxed. However, if a common carrier should salvage said damaged or destroyed items for its own use and benefit, it should pay a sales tax on the salvage value. If a common carrier should resell said damaged items to an individual or firm, said common carried should collect the sales and use tax on the sales price and remit any such collection to the Revenue Department.
2. It is my opinion that, where dealers in gasoline suffer a loss of stock in storage for which they are compensated, the sales and use tax should not be applied to such compensation since there has been no transaction which was contemplated within the purpose of the Sales and Use Tax Act.

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PUBLIC REVENUE-Sales Tax Foreign vendors of goods shipped into Georgia should collect and remit the taxes imposed by the Sales Tax Act.

May 4, 1951

Honorable Charles D. Redwine State Revenue Commissioner

OFFICIAL OPINION

QUESTION

Whether or not foreign vendors of goods which are shipped into Georgia

for use, storage and consumption are required to collect the use tax from the

vendee and remit the same to the State Revenue Commissioner of the State of

Georgia.

-

ANSWER: Section 4 of the Georgia Retailers' and Consumers' Sales and Use Tax Act
provides: "Every 'dealer' making sales, whether within or outside the State, of
tangible personal property, for distribution, storage, use, or other consumption, in this State, shall at the time of making sales, collect the tax imposed by this Act from the purchaser."

Relying on this language and the case of General Trading Company vs. State Tax Commissioner of Iowa, 322 U. S. 335, I am of the opinion that such foreign vendors of goods should register under the provisions of the Georgia Retailers' and Consumers' Sales and Use Tax Act, collect and remit the taxes imposed by this Act to the State Revenue Commissioner of the State of Georgia.

PUBLIC REVENUE-Sales Tax (Unofficial) County governments are not liable for the sales tax.
April 24, 1951
Mrs. Laura P. Hughes, In reply to your letter of April 21, 1951, in which you ask whether or not
county governments are required to pay the three per cent sales tax on the purchases they make, please refer to Section 2-d of the "Georgia Retailers' and Consumers' Sales and Use Tax Act" which reads, in part, as follows:
" ... The terms 'retail sale' and 'sale at retail' shall also not include the following:
(d) Sales which a State would be without power to tax under the limitations of the Constitution of the State or the United States, together with sales to the State of Georgia, any county or municipality of said State."

PUBLIC REVENUE-Sales Tax The sale of water by a county is exempt from the Sales T'ax.
May 23, 1951
Honorable William M. Lester Deputy State Revenue Commissioner
OFFICIAL OPINION QUESTION:
Whether the sale of water by a county is exempt from the provisions of the Georgia Retailers' and Consumers' Sales and Use Tax Act.

407
ANSWER: Section 3 (c) 2 (g) of the Georgia Retailers' and Consumers' Sales and
Use Tax Act provides: "The tax levied by this Act shall not apply to the sale of water by municipal
corporations or other political subdivisions of this State (not including mineral water or carbonated water, or any water put up in bottles, jugs, or other containers, all of which are not exempted.)"
It is my opinion that the language "or other political subdivision of this State" includes counties.
PUBLIC REVENUE-Sales Tax (Unofficial) The sale of natural gas by a municipality is not exempt from the sales tax.
September 10, 1951 Mr. Robert S. Mayne
We have received your letter of August 25, 1951, requesting advice as to the collection of the sales tax by municipalities where the municipality sells natural gas to its citizens.
Under the recently enacted Georgia Sales and Use Tax Act any exemption from the tax must apply to the consumer. The "dealer", a term from which municipalities were not excluded under the Act, is required to collect the tax as agent of the Revenue Department.
Therefore, it is my opinion that the City of Winder, when selling this gas, should collect the tax.
PUBLIC REVENUE-Sales Tax (Unofficial) 1. The charge by a city for the installation of a water meter is not taxable if the city retains title to the meter. 2. The sale of surplus property by a city is taxable unless to a branch of government or for resale.
April 13, 1951 Honorable Leopold Alexander
You ask me whether or not a charge made by the Water Department of the City to a property owner for the installation of a water meter, the cost of the meter being $31.00 and the cost of installation being $14.{)0, is taxable under the "Georgia Retailers' and Consumers' Sales and Use Tax Act". You state further that the title to the meter and the accessories is retained by the City and that the City makes any repairs and replacements that may be necessary. It is my opinion that the entire $45.00 charged is not taxable under this Act since the title to the meter remains in the City the entire amount represents a part of the charge for the sale of water by a municipal corporation.
You also ask me whether or not when the City disposes of certain surplus property, from time to time, consisting of old automobiles, machinery, junk, etc. is taxable.
It is my opinion that since the transactions are sales that they will be subject to the Sales T'ax Act unless, of course, the purchasers buy them for resale or the purchaser is a government exempt under the act. In case of a purchaser buying for re-sale the City must secure a certificate of re-sale (Form ST-4) from the purchaser.

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PUBLIC REVENUE-Sales Tax Housing authorities, rural electrical cooperatives and hospital authorities created under the Georgia Code are not exempt from the sales tax.

May 4, 1951

Mr. ALbert Dozier

Director of the Sales Tax Unit Department of Revenue

QUESTION:

OFFICIAL OPINION

Whether or not Housing authorities created under Chapter 99-11 of the Code of Georgia of 1933, Annotated, Supplement, are exempt from the payment of State Sales and Use Taxes. ANSWER:

Section 3-2 (d) of the Georgia Retailers' and Consumers' Sales and Use Tax Act provides that a "sale at retail" shall not include: "Sales which a State would be without power to tax under the limitations of the Constitution or the

United States, together with sales to the State of 'Georgia, any county or municipality of said State."

Housing Authorities organized under Chapter 99-11 of the Code of Georgia of 1933, Annotated, Supplement, do not fall within the definition of a county or municipality and are not exempt from the payment of sales and use taxes under this provision of the sales tax act.

However, Article VII, Section 1, Paragraph IV of the Constitution of the State of Georgia of 1945 provides that the General Assembly may, by law, exempt from taxation all public property and all institutions of purely public charity

but this constitutional section ends with the following language: "All laws exempting property from taxation, other than the property herein enumerated shall be void.'' (Emphasis added).

The General Assembly of Georgia in Section 92-201 of the Code of Georgia, Annotated, Supplement, exempts all public property and all institutions of purely public charity.

Section 99-1132 of the Code of <Georgia of 1933, Annotated, Supplement, provides:
"99-1132. Tax exemption and payments in lieu of taxes.-The property of

an authority is declared to be public property used for essential public and

governmental purposes and not for purposes of private or corporate benefit and

income, and such property and an authority shall be exempt from all taxes and special assessments of the city, the county, the State or any political subdivision thereof ... "

The Supreme Court of Georgia in the case of Williams v. Housing AuthoritJ of Augusta, 196 Ga. 673, held that Housing Authorities are institutions of purely

public charity and within the meaning of the above quoted section of the Constitution. Mr. Chief Justice Russell and Presiding Justice Atkinson dissented

on this point. In the case of Culbreth v. Southwest Georgia Regional Housing Authority, 199 Ga. 183, the court held that the property of the Housing Authority was public property and therefore exempt from property taxation.

In the early case of The Trustee of the Academy of Richmond County v, Bohler, 80 Ga. 159, Mr. Chief Justice Bleckley, speaking for the entire court, said that the Constitution itself does not exempt anything but only grants power to the General Assembly to exempt enumerated property. The Court said: "The

exemption is not a release in personam but a release in rem, and the res to which the release applies must be found and identified by the officer, or no exemption can be recognized." Speaking of institutions of purely public charity

409

mentioned in the Constitution the Court also said: "These institutions are thus

mentioned as property, as physical entities; not as the owners or users of

property; not as persons, corporeal or incorporated, nor as ideal beings, which are

neither persons nor property."

,

Since exemptions must be strongly construed against the persons claiming such exemption and since the General Assembly, with knowledge that such Housing Authorities were paying without dispute a selective sales tax on gasoline, did not choose to extend an exemption in the Sales Tax Act itself and since the exemptions granted in Sections 92-201 and 92-1132 of the Code of Georgia of 1933, Annotated, Supplement, and the authority for the exemptions in the Constitution itself is concerned only with property, it is my opinion that Housing Authorities are not exempt from the tax imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act because taxes imposed by this Act are not taxes on property.

It is my opinion that this same reasoning will apply to Rural Electric Cooperatives and Hospital Authorities.

PUBLIC REVENUE-Sales Tax 1. The Georgia Ports Authority is not exempt from the sales tax. 2. The warehousing service of the Authority is exempt. 3. Contractors working on current projects are exempt on deliveries made within 90 days of the effective date of the Sales Tax Act. 4. Contractors on future projects are subject to the sales tax. 5. The sales tax must be collected on any tangible personal property or service taxable under the Act which might be sold by the Authority.
May 18, 1951
Mr. Henry W. Sweet
OFFICIAL OPINION QUESTIONS:
1. Is the Georgia State Ports Authority exempt from paying sales tax on the purchase of supplies and equipment?
2. Is the Georgia State Ports Authority required to charge sales tax on warehousing and other services rendered to customers?
3. Is the contractor employed for construction of current projects required to pay sales tax on materials used in construction of facilities to be owned by the Georgia State Ports Authority?
4. Are future contractors who have construction jobs for the Georgia State Ports Authority required to pay sales tax on materials used in construction for the Georgia Ports Authority.
5. Is there any other responsibility placed on the Georgia Ports Authority to pay or receive sales tax under any circumstances not included in the above questions?
ANSWER: 1. That the Georgia State Ports Authority is not exempt from paying sales
tax on the purchase of supplies and equipment. 2. Warehousing is a service not taxable under our Act. 3. Contractors engaged in construction of current projects are not required
to pay sales tax on "any building supplies, fixtures, or equipment that enter into or become a part of building or other kind of structure in this State, where plans, specifications and construction contract for a specific project has been entered into prior to the date of approval of this Act, provided delivery is

410
made within ninety (90) days." The ninety (90) day delivery period ends on June 30.
4. Contractors on State construction jobs will be required to pay sales tax on all materials used.
ti. lf the Authority sells tangible personal property or services taxable under the Act, then the Authority must register, collect, and remit to the State Revenue Commissioner taxes due under the Act.
PUBLIC REVENUE-Sales Tax (Unofficial) Medications used in growing broilers are not such materials as to be exempt under the sales tax.
November 16, 1951 Mr. Charles W. Hubbard
In response to your letter of November 8, 1951, regarding the taxability of medications used in growing broilers, I would like to point out that I have been unable to find any authority in the Georgia Retailers' and Consumers' Sales and Use Tax Act for the exemption which you claim.
It is my opinion that medications used in growing broilers are not direct materials used in the fabrication of a finished product, nor are they specifically exempt under the Act. It appears to me that you are the consumer of the medications which you buy for use in your business and that as such they are not for resale.
PUBLIC REVENUE-Sales Tax The filtering cloths used in production of cottonseed oil and other products produced from oil bearing seeds are not taxable under the Sales Tax.
May 30, 1951 Honorable William M. Lester Deputy State Revenue Commissioner
OFFICIAL OPINION QUESTION:
Whether or not filtering cloths used in a filtering process in production of cotton seed oil, meal, cake, or similar oils, meals and cakes produced from peanuts, soya beans, and other like oil bearing seeds, beans or nuts, are taxable under the Sales and Use Tax Act. ANSWER:
It is my opinion that such filtering cloths come within the meaning of filtering materials and as such are exempt under Section 3 (e) 2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act and Rule XV, Section 2 of the Rules and Regulations promulgated by the Commissioner of Revenue.
PUBLIC REVENUE-Sales Tax (Unofficial) Milk bottles and cartons are exempt from the sales tax.
May 7, 1951 Mr. James E. Jackson Georgia Dairy Association 414 Hurt Building Atlanta 3, Georgia Dear Mr. Jackson:
You ask whether or not glass bottles used as containers for milk are

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exempt from the provisions of the Georgia Retailers' and Consumers' Sales and Use Tax Act under Section 3 (2).
This section of the Act defines "sale at retail," "use", "storage" and "consumption" and ends with this language: " ... nor shall such terms include materials, containers, labels, sacks or bags used for packaging tangible personal property for shipment or sale."
The entire theory of the sales tax law would seem to indicate that a distinction should be made on whether or not the "containers" are furnished, that is, whether or not title passes to the purchaser. Many sales tax acts clarify this problem. For example, Alabama refers to "furnished containers" and their courts have held that title must pass before the container is exempt.
The General Assembly of Georgia has made no restriction, qualification, or interpretation of the word "container" except that they must be used for packaging tangible personal property for shipment or sale. Milk bottles as well as milk cartons are so used and I am of the opinion that there is no legal distinction between the two as to their exemption under the terms of this Act.

PUBLIC REVENUE-Sales Tax (Unofficial) The consumer of fuel oil and kerosene used for curing tobacco must pay the sales tax.
June 29, 1951 Mr. L R. Lindsey
In reply to your letter of June 22, 1951 requesting advice as to the collection of the sales tax on fuel oil and kerosene which is used for curing tobacco in preparing it for market, it is my opinion that the consumer of the fuel oil and kerosene must pay the tax to his vendor. There is nothing in the Georgia Sales Tax Act which would exempt fuel oil and kerosene in this process.

PUBLIC REVENUE-Sales Tax Electricity and Gas are "goods" within the meaning of Section 3 (c) 2 (e) of the Sales Tax Act.

Honorable William M. Lester Deputy State Revenue Commissioner

May 25, 1951

OFFICIAL OPINION QUESTION:
Whether or not electricity and gas are "goods" within the meaning of Section 3 (c) 2 (e) of the Georgia Retailers' and Consumers' Sales and Use Tax Act. ANSWER:
Section 3 (c) 2 (e) of the Georgia Retailers' and Consumers' Sales and Use Tax act provides:
"The tax levied by this Act shall not apply to sales of goods made pursuant to bona fide written contracts entered into before the date of the approval of this Act, or the purchase price of any building supplies, fixtures or equipment that enter into or become a part of building or other kind of structure in this State, where plans, specifications and construction contract for a specific project has been entered into prior to the date of approval of this Act, provided delivery is made within ninety (90) days."

Section 3-(i) defines tangible personal property as follows: " 'Tangible personal property' means and includes personal property, which

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may be seen, weighed, measured, felt, or touched, or in any other manner perceptible to the senses."
It is my opinion that the meaning of the word "goods", in Section 3 (c) 2 (e) of the Act is the same as the term "tangible personal property". The word "goods" is used to limit the exemption granted in this Section SO as not to include service.
By the very definition of "tangible personal property" contained in the Act, both electricity and gas are included.
Therefore, it is my opinion that sales of electricity and gas, under the provision, limitation and qualification of the exemption contained in Section 3 (c) 2 (e), are exempt.
PUBLIC REVENUE-Sales Tax Fuels used for heating in the manufacturing process are not such industrial materials as to be exempt from the sales tax, nor is their use such a direct use as to be exempt from the sales tax.
December 12, 1951 Mr. Albert Dozier Director of the Sales Tax Unit Department of Revenue
OFFICIAL OPINION FACTS:
"A" Company is engaged in the business of producing and selling steel and steel products. It produces steel ingots by melting pig iron and scrap metal in open hearth furnaces, and it processes the steel ingots so produced into the various finished and semi-finished steel products which it sells.
"A" Company uses natural gas in its manufacturing processes. In one month it used 136,980,000 cubic feet of gas of which (1) 28,294,000 cubic feet was used for general heating of buildings, offices, etc.;
(2) 99,990,000 cubic feet was used in open hearth furnaces, reheating furnaces, forging furnaces, and annealing pots. In all of these furnaces and annealing pots, the gas is ignited and the flame burns over, around and in direct contact with the steel and steel products at a temperature of from 1800 to 2400 degrees Fahrenheit.
(3) 6,742,000 cubic feet was used in wire galvanizing, nail galvanizing, hoop, bar and job galvanizing bright wore, baling, and melting lead for lead head nails. In all of these uses, the gas is ignited and the flame burns against an oven or other container in which is placed for processing under high heat either the steel products or some mixture of zinc or lead or other material becomes a part of such products.
(4) 1,954,000 cubic feet was used in drying ladles used to receive charges of molten steel from open hearth furnaces and to pour such steel into molds in which such molten steel cools and hardens into ingots.
It is admitted that the gas set out in (1) above and used for general heating purposes is taxable. QUESTION:
Whether or not all or any part of the gas used in factual situations (2), (3) and (4) is taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act. ANSWER:
Section 3(c)2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act provides:

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"The terms 'sale at retail', 'use', 'storage' and 'consumption' shall not include the sale, use, storage or consumption of industrial materials for future processing manufacture or conversion into articles of tangible personal property for resale where such industrial materials become a component part of the finished product nor shall such terms include industrial material, other than machinery and machinery repair parts, that are used directly in the fabricating, converting, or processing of articles of tangible personal property or parts thereof for resale, nor shall such terms include materials, containers, labels, sacks or bags used for packaging tangible personal property for shipment or sale."
Rule 15 of the Rules and Regulations promulgated by the State Revenue Commissioner provides:
"Industrial Materials.-
"Exempt industrial materials are divided into three categories:
"(1) Industrial materials for future processing, manufacture, or conversion into articles of tangible personal property for resale where such materials become a component part of the finished product;
"(2) Industrial materials (other than machinery and machinery repair parts) that are consumed directly in the fabricating, converting or processing of articles of tangible personal property or parts thereof for resale. This category includes essential materials in the manufacturing process which are in direct contact with and are in such relation to the goods in process of manufacture that there is no intervention of any person or thing, yet they do not become a component part of the finished product. This category does not include materials and supplies which are incidental to the process. Examples of materials exempt in this category are: Compounding oils, chemicals, solvents, dyes, nodes, catalysts, filtering materials, and other similar items.
"(3) ,Containers, labels, sacks, bags, and other materials used for packaging tangible personal property for shipment or sale."
In the case of Phillips & Buttorff Mfg. Co. v. Carson, (Tenn., 1949) 217 S. W. 2d 1, the Commissioner of Finance and Taxation attempted to enforce payment of the Tennessee sales tax on the sale of coal to a manufacturing company which produced its own electricity for its own use in its manufacturing process. The company insisted that the use of coal to produce electricity was a direct use and therefore exempt under the T'ennessee statute whose language is substantially the same as Section 3 (c) 2 of the Georgia statute.
The Supreme Court of Tennessee held that the use of the coal was not a "direct use" and therefore not exempt. It was immaterial in deciding this case that the sale of electricity is specifically exempt from sales and use taxation in Tennessee. The Court relied to some degree on the fact that there was no physical contact and stated that in order to have a "direct use" there must be no intervention of any person or thing.
That this is one test of "direct use" is not controverted. It is insisted, however, that this is not the exclusive test although such a test solves probably 90% of the questions. However conclusive and determining this test may be in most situations, it may be inconclusive and inadequate here. For what it is worth, however, let us apply it to factual situations 2, 3 and 4. There can be but one conclusion and that is that the gas is not used as gas, nor does it come "in direct contact with" as gas. Rather, the gas is ignited in order to secure that heat necessary for the manufacturing process.
In order to reduce this problem to its simplest proportions, consider the gas used by restaurants in the cooking of food. This gas is not exempt. If, instead of a pan being used over a flame for cooking, the flame was allowed to burn over

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the food, would it not be ridiculous to say that direct contact of the flame has now made the sale of gas exempt? To ask such a question is to answer it.
Section 3 (c) 2 of the original bill introduced in the Legislature read as follows:
"The terms 'sale at retail', 'use', 'storage', and 'consumption' shall not include the sale, use, storage or consumption of industrial materials for future processing, manufacture or conversion into articles of tangible personal property for resale where such industrial materials become a component part of the finished product, nor shall such terms include materials, containers, labels, sacks or bags used for packaging tangible personal property for shipment or sale".
The language:
"nor shall such terms include industrial materials, other than machinery and machinery repair parts, that are used directly in fabricating, converting, or processing of articles of tangible personal property or parts thereof for resale," was offered by Senator Trotter of LaGrange as an amendment. He stated that he wanted to be sure that the Act would exempt those industrial materials which were at one stage of the manufacturing process a component part of the product but which before the completion of the manufacturing proces.s might not be a component part. He referred specifically to starches, sizing and dyes as used in the textile industry.
With this background, it becomes increasingly clear that gas or other fuels used for heat in the manufacturing process are not such industrial materials as contemplated in the Act nor is their use such a direct use as is required by the Act.
Therefore, it is my opinion that the gas used in factual situations 2, 3 and 4 is taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act.

PUBLIC REVENUE-Sales Tax (Unofficial) Fuels used in steam generating plants for producing electricity for resale by electric utilities are not exempt under the sales tax.

June 27, 1951

Honorable Henry B. Troutman In my May 4, 1951 letter to you I expressed an unofficial and personal
opinion to the effect that fuels used by electric utilities to generate steam which steam is used to turn dynamos which produce electricity were exempt from taxation under Section 3-2 of the Georgia Retailers' and Consume11s' Sales and

Use Tax Act. Upon a more mature and careful consideration of the modus operandi of
your client, the Sales Tax Act, and certain court decisions, I have reached the conclusion that my earlier opinion is incorrect.
Under Section 3-2 there are three exemptions, to-wit:

1. " . . . the sale, use, storage or consumption of industrial materials for future processing, :manufacture or conversion into articles of tangible personal property for resale where such industrial materials become a component part

of the finished product. . . "

2. " . . industrial material, other than machinery and machinery repair

parts, that are used directly in the fabricating, converting, or processing of

articles of tangible personal property or parts thereof for resale

"

3. " . . . materials, containers, labels, sacks or bags used for packaging tan-

gible personal property for shipment or sale."

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In order for tangible personal property to be exempt under the concerned portion of Section 3-2 of the Act (the second part), it must meet three tests:
1. The tangible personal property must be "industrial material"; 2. The tangible personal property must NOT be machinery or machinery repair parts; and 3. The tangible personal property must be "used directly in the fabrication, converting, or processing of articles of tangible personal property or parts thereof for resale."
As you are aware, it is a maxim of law in Georgia that taxation is the rule and exemption, the exception. Thompson, State Revenue Commissioner v. Atlantic Coastline Railroad Company, 200 Ga. 856. Therefore, any exemption claimed must be strictly construed.
It is a cardinal rule of construction that words of a statute must be taken in their ordinary sense. Section 102-102, Code of Georgia of 1933.
It is granted, for present purposes, that fuel used by electric utilities in steam electric plants is an "industrial material". It is not machinery or machinery repair parts. Therefore, we may limit our question to whether or not fuels so used by electric utilities are "used directly in the fabricating, converting, or processing of articles of tangible personal property or parts thereof for resale."
I have already determined that electricity is tangible personal property by definition in the Sales Tax Act, so the question is further confined to the meaning of the words "used directly".
The Georgia Sales Tax Act is patterned closely after the Tennessee Sales Tax Act and for all intents and purposes in this discussion, they are the same. When a statute of one State is copied from another State, surely, it is the intent of the Legislature that the words so used by the other State have the same meaning and interpretation as placed on them by the other State.
There has been at least one decision which ably discusses this very question. I refer to the case of Phillips and Buttorff Manufacturing Company v. Carson (Supreme Court of Tennessee, 1949) 217 S. W. 2d 1.
It was argued in that case that the court should not give the word "directly" a dictionary meaning but the court pointed out that "words employed by the legislature are to be taken in the natural and ordinary sense." The Supreme Court of Tennessee, in discussing "directly", went on to say, "as commonly understood it means 'in direct contact with, and without the intervention of any person or thing'. Of course, this is the dictionary meaning. Webster's New International Dictionary, 2d Ed. But we are not authorized to give it a different meaning to meet the exigencies of any unusual situation." The court then said, "We think that coal and fuel oil, purchased and used by the complainant in operating generators and other machinery, are used indirectly in that they produce steam, which gives power to generators and which in turn set in motion machines of different kinds in fabricating articles to be sold to the ultimate consumer."
In the question at hand, we have intervening causal factors which result in an indirect use of the fuel in the production of electricity. The fuel is used to heat water and thereby generate steam and the steam is used to turn dynamos. It is the turning of these dynamos that produces electricity.
Therefore, it is my opinion that fuel used by electric utilities to generate steam which steam is used to turn dynamos, the turning of which produces electricity, is not exempt from taxation by Section 3-2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act. The fact that electricity is not taxable under the Tennessee Sales Tax Act is not material to this question because such non-taxability results from a specific exemption in their Act.

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PUBLIC REVENUE-Sales Tax (Unofficial) Electrical energy and fuel oil used for producing high temperatures in the operation of brick kilns and molding machinery are taxable under the Sales Tax.
May 25, 1951 Honorable William M. Lester Deputy State Revenue Commissioner
You ask whether or not electrical energy used for producing high temperatures in the operation of brick kilns and electrical energy used in the operation of brick molding machinery and fuel oil used to produce high temperatures in brick kilns are taxable under the Georgia Retailers' and Consumers' Sales and Use T'ax Act.
The only possible place in the Act where such materials could be considered exempt is in Section 2 relating to industrial materials. A similar problem is well treated in Phillips & Buttorff Mfg. Co. v. Carson, 217 S. W. 2d. 1. It is my op1mon that the materials here referred to are not industrial materials used directly as provided by the Act and, therefore, they are taxable.
PUBLIC REVENUE-Sales Tax Fuel used to generate heat to dry Fullers Earth is not exempt from the Sales Tax Act.
July 3, 1951
Honorable Albert Dozier Director of Sales Unit
OFFICIAL OPINION QUESTION:
Whether or not fuel used to generate heat to dry Fullers Earth is exempt from payment of taxes imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act by virtue of Section 3-2 of the Act? ANSWER:
It is my opinion that since such fuel is not directly used within the contemplation of the Act it is not exempt by virtue of Section 3-2.
PUBLIC REVENUE-Sales Tax Natural gas used in producing barium carbonate is not exempt under the sales tax.
June 13, 1951
Honorable William M. Lester Deputy Commissioner Department of Revenue
OFFICIAL OPINION FACTS:
Barium Carbonate is produced as follows: Barytes (BaS04), produced locally, is introduced along with a particular type of high-carbon coal, by a controlled feed, into a revolving kiln which is fired by natural gas. This kiln is maintained at about 2300 degrees F. At this temperature, the barytes (BaS04) is converted into Barium Sulfide (BaS), the other product, carbon monoxide, being discharged through a stack.
The Barium Sulfide (BaS) is put into solution with water for cleansing

417
purposes, then pumped to another tank wherein flue gas from the boilers, Carbon Dioxide (C02), is pumped into this solution. Here the Barium Sulfide (BaS) combines with the Carbon Dioxide (C02) to give Barium Carbonate (BaC03), the desired product. The flue gas or Carbon Dioxide (C02) used here comes from the steam boilers which are fired by natural gas; the steam generated being used to convert the chemical solutions into dry powders, the desired end product, and the carbon dioxide (C02), derived from burning the natural gas, being pumped into the Barium Sulfide (BaS) solution to create Barium Carbonate (BaC03). QUESTION:
Whether or not the natural gas used is exempted from taxation under the provisions of the Georgia Retailers' and Consumers' Sales and Use Tax Act. ANSWER:
Section 3(c)2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act provides:
"The terms 'sale at retail,' 'use,' 'storage,' and 'consumption' shall not include the sale, use, storage or consumption of industrial materials for future processing, manufacture or conversion into articles of tangible personal property for resale where such industrial materials become a component part of the finished product nor shall such terms include industrial material, other than machinery and machinery repair parts, that are used directly in the fabricating, converting, or processing of articles of tangible personal property or parts thereof for resale, nor shall such terms include materials, containers, labels, sacks or bags used for packaging tangible personal property for shipment or sale." (Emphasis added).
A very careful study of the facts indicates to me beyond question that the natural gas is not so directly used as to fall within the above quoted exemption.
PUBLIC REVENUE-Sales Tax Knitting needles and "jacks" are not such industrial materials as are exempt under the sales tax act.
June 18, 1951 Honorable Charles D. Redwine State Revenue Commissioner
OFFICIAL OPINION QUESTION:
Whether or not knitting needles and "jacks" are industrial material under Section 3(c)2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act and, therefore, exempt from the tax imposed by this Act. ANSWER:
In order for tangible personal property to be an exempt industrial material, three tests must be made: First, the tangible personal property must be an industrial material; second, the tangible personal property must be used directly in the fabricating, converting or processing of articles of tangible personal property or parts thereof for resale; and third, the tangible personal property must not be a machine or machine repair part.
It is my opinion: 1. That knitting needles and "jacks" are industrial material. 2. That knitting needles are used directly in the manufacture of hosiery but "jacks" are not. 3. That knitting needles when so used are a part of the machine. It becomes unnecessary to decide whether or not "jacks" are a part of the machine since they fail to meet the second test.

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Therefore, it is my opmwn that knitting needles and "jacks" are not such industrial materials as are exempt by Section 3 (c) 2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act.
PUBLIC REVENUE-Sales Tax (Unofficial) The sales tax must be collected on the service of mixing concrete, since it is one of fabrication.
July 3, 1951 Mr. Sam DuBose
This letter is further reference to your letter of June 20, 1951 in which you asked my opinion as to the collection of the sales tax on the service of mixing concrete and its delivery to the job. Due to the rush created by numerous questions of interpretation as to various sections of the new Georgia Sales and Use Tax Act, I did not have a chance to give your question proper consideration, but after further consideration, it is my opinion that your service is one of fabrication which is expressly taxed under the Georgia Sales and Use Tax Act. The fact that raw materials are supplied to you for the fabrication of the finished product will not exempt your service, mixing concrete, from this tax.
PUBLIC REVENUE-Sales Tax (Unofficial) 1. Where old equipment is traded in on "like kind" new equipment, the sales tax applies on the difference. 2. Where one commodity is traded in on another commodity, the sales are separate and distinct and thus a tax upon both, unless one is for resale.
April 23, 1951 Mr. W. S. Weeks
You ask whether or not when an equipment sale of $2,000.00 is made and a trade in of $1,000.00 is allowed on old equipment, the sales tax is imposed upon the $1,000.00 difference or the $2,000.00 sale.
I concur in the decision made by the Department of Revenue that the three per cent sales tax is imposed on the $1000.00 difference. Of course, the equipment trade in bears a three per cent sales tax when it is sold.
You also ask whether or not when groceries in the amount of $50.00 are purchased and payment is made by $25.00 in cash and $25.00 worth of chickens, the tax is imposed upon the $25.00 difference or the grocery sale of $50.00.
My view in this matter is that the two sales are separate and distinct and that the sales tax is imposed upon the $50.00 grocery sale. The groceryman will also collect a three per cent tax on the sale of the chickens to consumers.
PUBLIC REVENUE-Sales Tax The taxability of untreated railroad ties is determined by the facts in each case. May 22, 1951
Honorable William H. Lester Deputy State Revenue Commissioner
OFFICIAL OPINION QUESTIONS:
1. A railroad buys untreated ties in Georgia and thereafter has them creosoted in the State. On installation of the ties, does it pay a use tax on the

419
cost of the untreated value only, or must it pay on the full treated value? 2. The same facts as in (1), except that after buying the ties the railroad
ships them outside the State for creosoting and subsequently brings them back in the State for use. Is the use tax based on the cost of the untreated ties or must it also include the cost of processing them outside the State?
3. A railroad buys untreated ties in Georgia for shipment in interstate commerce, the ties being shipped and creosoted outside the State and subsequently brought back into Georgia and used. Is the use tax measured by the treated or untreated value of the ties?
4. A railroad buys untreated ties outside the State and brings them into the State for creosoting, the ties subsequently being installed in Georgia. Is the use tax based on the amount paid for the untreated ties or upon that amount plus the treating cost?
5. A railroad buys untreated ties outside the State and also has them cretosoted outside the State, with the ties subsequently being imported into Georgia and used there. Is the use tax based upon the cost of the untreated ties or must the cost of processing also be included? ANSWER:
1. The taxing incident is the sale and, therefore, the tax to be paid by the railroad would be paid on the cost of the untreated ties.
2. Same as one. 3. The taxing incident is the use and, therefore, it would be measured by the value of the treated ties. 4. The taxing incident occurs before the treatment of the ties and, therefore, the use tax would be measured by the value of the untreated ties. 5. The taxing incident is the use of the ties and, therefore, the use tax would be measured by the value of the treated ties.
PUBLIC REVENUE-Sales Tax The American National Red Cross is not liable for the payment of the sales tax.
November 26, 1951 Honorable Charles D. Redwine Commissioner of Revenue
OFFICIAL OPINION QUESTION:
Are purchases made by Chapters of the American National Red Cross taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act? ANSWER:
The American National Red Cross was chartered and incorporated by an Act of Congress January 5, 1905 and exists today under that Act as amended by an Act of Congress on May 8, 1947. Title 36, Chapter 1, United States Code Annotated.
The purpose for which this organization was created and incorporated by Congress was to enable the United States Government to meet its obligations under the conference of Geneva of October, 1863, and the treaties of August 22, 1864 and July 27, 1929, concerning the Red Cross, which were the results of the conference and to which the United States 'Government is a party. It has additional governmental functions of assisting the military forces of the United States and other countries in voluntary relief activities in time of war and in giving assistance in the mitigation of suffering caused by national calamities. Title 36, Section 2, United States Code Annotated.

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Since no State has the power to tax a Federal instrumentality where it is conducting a governmental function, M'Culloch v. Maryland, 4 Wheat. 316, it is my opinion that the American National Red Cross, being such an instrumentality, is immune from taxation under the Georgia Retailers' and Consumers' Sales and Use T'ax Act.
PUBLIC REVENUE-Sales Tax: (Unofficial) Charges for a meal served by the church is subject to the sales tax.
April 23, 1951 Rev. Charles A. Jackson, Jr.
In your letter of April 17 you state that church suppers are held for which a charge of 50c is made to pay a part of the expenses for the preparation and serving and which charge does not cover the entire cost of the meal and which payment is actually subsidized by the church. It is my view that this charge for a meal is taxable to the consumer of the meal at the rate of three per cent of the charge made. The church is not being taxed. The individual consuming the meal bears the tax and the church merely remits to the State the amount collected.
It is also my view that if the church serves a meal and bears the entire expense and solicits and receives free will offerings that no tax would attach.
PUBLIC REVENUE-Sales Tax: Meals sold by restaurants and hotels to employees are taxable under the Sales Tax Act.
October 31, 1951 Honorable Charles D. Redwine State Revenue Commissioner
OFFICIAL OPINION QUESTION:
Whether or not meals sold by restaurants and hotels to their employees are taxable to said employees under the Georgia Retailers' and Consumers' Sales and Use Tax Act. ANSWER:
Section 3(c)l of the Georgia Retailers' and Consumers' Sales and Use Tax Act provides:
" 'Retail sale' or a 'sale at retail' means a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, or service taxable under this Act, ... "
Section 3(c)3(i) provides: " 'Tangible personal property' means and includes personal property, which may be seen, weighed, measured, felt, or touched, or is in any other manner perceptible to the senses...." The tax is levied by Section 2(a) which provides: "At the rate of three percent (3%) of the sales price of each item or article of tangible personal property when sold at retail in this State; ... " There appears no exemption in the Act which would exclude the taxability of the sale of these meals. Therefore, it is my opinion that they are taxable at the rate of 3% of the sales price.

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PUBLIC REVENUE-Sales Tax (Unofficial) The sale of coca cola through vending machines is taxable.
June 29, 1951 Honorable Jefferson L. Davis
In reply to your letter of June 25, 1951, requesting advice as to the collection of the sales tax on the sale of Coca Cola through vending machines where the profits from these concessions are given to the P.T.A. groups and the police and fire departments, it is my opinion that the tax should be collected. The tax is to be paid by the consumers and not by the groups you have mentioned who receive the profits. The persons owning and operating the machines, vendors, are required merely to collect the tax from the, consumers and remit it to the Revenue Department.
PUBLIC REVENUE-Sales T'ax (Unofficial) The sales tax applies to the acquisition of equipment and furniture to be used in hotel rooms.
June 19, 1951 Mr. G. B. Ingraham
In reply to your letter of June 13, 1951, ra1smg the question of the applicability of the sales tax to equipment and furniture used in hotel rooms, it is my opinion that the hotels are required to pay the tax. This equipment is used by the hotels for the accommodation of their guests. The guests are not responsible for the sales tax since they do not purchase, lease, or rent, items of accommodations, but pay for service and accommodation as a unit, the cost of the unit depending on the amount of service and accommodation afforded.
PUBLIC REVENUE-Sales Tax (Unofficial) Hotel operators in Georgia should pay sales tax on linens rented to them by out-of-state linen service companies.
May 11, 1951 Mrs. Will Poole
I concur in the view of the Department of Revenue that you should pay the three per cent sales tax to the Chattanooga Linen Service on all linen rented by you from them and they should be registered under the Georgia Retailers' and Consumers' Sales and Use Tax Act.
If, however, the Chattanooga Linen Service does not bill you for this sales tax, then you should report and remit three per cent to the State Revenue Commissioner under the Use Tax.
PUBLIC REVENUE-Sales Tax (Unofficial) Hotels, restaurants, and motor courts sell services and are themselves consumers of linens. Such linens are not purchased by them for resale, and they should pay the sales tax thereon.
May 30, 1951 Honorable John J. Flynt, Jr.
While your opinion on the question of whether the Retailers' and Consumers' Sales and Use Tax Act imposes the tax on sales of linens, towels, pillow cases, napkins, and similar articles to hotels, restaurants, and motor courts is persuasive,

422
my staff and I are constrained to disagree with your conclusion under our law. It is my opinion that the sale of these articles is taxable since the hotels, restaurants, and motor courts are the consumers. Legally these hotels, etc., do not purchase such items for resale. They sell a service or an accommodation and all these items are consumed by them in the rendering of such a service or rental accommodation.
PUBLIC REVENUE-Sales Tax Sheriffs who purchase food for prisoners out of their own funds are required to pay the sales tax.
November 16, 1951 Mr. J. H. Crutchfield, Tax Consultant, Sales T'ax Unit
OFFICIAL OPINION QUESTION:
Are Sheriffs who purchase food for prisoners while confined in jail out of their own funds required to pay the sales tax on such purchases? ANSWER:
The above question necessarily involves the question of who is the consumer under the Georgia Retailers' and Consumers' Sales and Use Tax Act. If the food purchased by the Sheriff is bought from his own funds and not for purposes of resale the Sheriff is considered the consumer of that food under the de,finition in that Act. The fact that the Sheriff may be compensated out of County funds is not of material consequence under this Act. If the Sheriff spends his own money and is considered the consumer of those items which he purchases, he must pay the tax.
PUBLIC REVENUE-Sales Tax (Unofficial) The sales tax applies to sheriff's sales and other forced sales, including condemnation.
June 14, 1951 Honorable Graydon D. Reddick
In response to your letter of June 9, 1951, questioning the applicability of the sales tax to Sheriff's sales and other forced sales, including condemnation, it is my opinion that the sales tax will apply to those transactions.
PUBLIC REVENUE-Sales Tax Leases are considered as sales, with certain qualifications, under Section 3(c)2(e) of the Sales Tax Act.
May 17, 1951 MEMORANDUM TO: CHARLES D. REDWINE, State Revenue Commissioner QUESTION: Where written leases and written leases with options to purchase were entered into prior to February 30, 1951 accompanied by a contemporaneous delivery of heavy equipment covered thereby, are these leases to be considered

423
sales made pursuant to bona fide written contracts entered into prior to the approval date of the Act with delivery made within ninety (90) days from the effective date of the Act so as to come within the meaning of Section 3 (c) 2 (e) of the Georgia Retailers' and Consumers' Sales and Use Tax Act?
ANSWER: Section 3 (b) of the Act defines "sale" as to mean "any transfer of title
or possession, or both, ... lease or rental, conditional or otherwise, in any manner or by any means whatsoever of tangible personal property for a consideration, ...
Section 3 (c) 2 (e) of the Act provides "the tax levied by this Act ~hall not apply to sales of goods made pursuant to bona fide written contracts entered into before the date of the approval of the Act ... provided delivery is made within ninety (90) days".
Under the act's definition of a sale, a lease is clearly included and, therefore, leases would be included within the meaning of Section 3 (c) 2 (e). However, it is my view that the delivery contemplated in connection with the term "leases'' and "rentals" is a delivery of the "thing" sold. In a lease only one "thing" is sold and that is the use of the subject of the lease. In the sense here, therefore, delivery and use are synonymous.
For example, if on January 1 a lease for the rental of equipment is entered into under a bona fide written contract and lease payments are to be made at monthly intervals, then it is my view that the monthly rental payments beginning July 1 bear the three per cent sales tax and that all others prior to that date do not.

PUBLIC REVENUE-Sales Tax (1) Operators of U-Drive-It Systems must pay the sales tax on gasoline, tires and other items used in their operation. (2) The rental charge made by a concern renting automobiles to individuals to be operated as taxi cabs is taxable.

Honorable William M. Lester Deputy State Revenue Commissioner

May 24, 1951

OFFICIAL OPINION QUESTION:
1. Whether or not operators of U -Drive-It Systems are required to pay the sales and use tax on gasoline, tires and other items used in the operation of their cars.
2. Whether or not a concern which rents cars to individuals to operate them as taxi cabs should collect three per cent of the rental charge from the taxi cab operator.
ANSWER: 1. Section 3 (b) of the Georgia Retailers' and Consumers' Sales and Use
Tax Act provides: " 'Sale' means any transfer of title or possession, or both, exchange, barter,
lease or rental, conditional or otherwise, in any manner or by any means whatsoever of tangible personal property for a consideration, ... ".
The State of Arkansas has what is termed a gross receipts and use tax and language virtually the same as above quoted is found in their Act. However, Arkansas specifically exempts transportation service from the term of their Act.
The Arkansas Supreme Court in U-Drive-'Em Service Company v. State

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(1943), 205 Ark. 501, 169 S. W. 2d 584, held that the public rental of automobiles by a person conducting a business wherein ninety-five per cent of the rentals were for short periods of time did not constitute such a transfer of possessions as within the meaning of the sales tax act's definition of a sale. The Court said under such a transaction the owner of the vehicle is always either in actual or constructive possession, with the rentee simply having a temporary custody as a bailee. The Court was of the opinion that "transfer of possession" as used in the statute, meant a transfer that, in effect, amounted to a sale. The result being that such rentals come within the meaning of "transportation service" and, therefore, were exempt under the terms of the Arkansas Act.
The Georgia Retailers' and Consumers' Sales and Use Tax Act imposes a tax not only upon the rental of tangible personal property but also upon transportation service. It is my opinion that rentals made by U-Drive-It Systems constitute transportation service and, therefore, such service is taxable under our Act.
Further, it is my conclusion that U -Drive-It Systems are required to pay the sales and use tax on gasoline, tires and other items used in the operation of their cars. The U -Drive-It System is the consumer of these items in the offering and rendering of a transportation service.
2. It is my opinion that the rental charge made by a concern which rents automobiles to individuals who operate them as taxi cabs is taxable as a rental of tangible personal property. Of course, the charges made by operators of those taxi cabs are also taxable as a transportation service to the person using the service.
PUBLIC REVENUE-Suspension of The Collection of Taxes The Governor may suspend the coliection of taxes due the State until the meeting of the next General Assembly.
March 22, 1951
Honorable Herman Talmadge Governor of Georgia
OFFICIAL OPINION QUESTION:
Does the Governor of this State have the authority to suspend the collection of the general sales and use tax authorized by House Bill No. 2, approved February 20, 1951, insofar as it applies to the purchase price of any building supplies, fixtures or equipment that enter into or become a part of buildings or other kind of structures in this State, where plans, specifications and construction contracts for a specific project have been entered into prior to the approval date of said Act?
ANSWER: Section 40-205 of the 1933 Annotated Code of Georgia, codified from an Act
of 1921, Cobb, 1025, provides as follows: "The Governor may suspend collection of taxes, or any part thereof, due
the State until the meeting of the next General Assembly but no longer; nor shall he otherwise interfere with the collection thereof."
The Governor under the above cited statutory authority is given broad discretionary power to suspend the collection of taxes or any part thereof due the State until the next meeting of the General Assembly after such suspension.
Section 29 of the Georgia Retailers' and Consumers' Sales and Use Tax Act (House Bill No. ~' approved February 20, 1951) provides:

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"'Ihe taxes imposed hereby shall be of full force and effect on and afun April 1, 1951."
Under the express provision of the above cited Act, the taxes imposed do not become effective until April 1, 1951. Therefore there could be no legal suspension of such taxes until they actually become effective.
It is my opinion that you are clearly authorized on or after April 1, 1951 to suspend, until the next meeting of the General Assembly, the collection of the sales and use taxes levied under the provisions of House Bill No. 2, approved February 20, 1951, which specifically relate to the purchase price of any buildings, supplies, fixtures or equipment that enter into or become a part of buildings or other kind of structure in this State, where plans, specifications and construction contracts for a specific project have been entered into prior to February 20, 1951.
PUBLIC REVENUE-Tax Collectors The law fixing the rate of commissions for tax collectors continues after the 1951 amendatory Act until such time as the county authorities adopt a proper resolution changing their commission rate.
May 3, 1951 Honorable W. Harvey Atkinson Director, Property & License T'ax Unit Department of Revenue
OFFICIAL OPINION
FACTS: Section 3 of the Acts of 1951, page 815, provides as follows: "Be it further enacted by the authority aforesaid that as far as the tax
collectors and tax commissioners are concerned, the rates and schedules prescribed by Section 92-5301 shall apply upon the first 90 percent of the ad valorem net digests collected by the tax collector. On all taxes collected in excess of 90 percent of the total of taxes due, according to the tax net digest, the tax collector's or tax commissioner's commission shall be for such taxes 10 percent of all such collections, irrespective of the above and foregoing schedule and rates; provided further, that the board of commissioners of roads and revenues or the ordinary in those counties having no board of commissioners may by appropriate resolution provide that the tax collector's or tax commissioner's commission shall be 10 percent of all taxes collected in excess of 80 percent of the total taxes due according to the net tax digest. Provided, further, that in those counties where the tax collector or tax commissioner is paid on a salary basis, the commission provided for herein shall be paid to the tax collector or tax commissioner in addition to the said salary. Provided further, that in counties having a population of 75,000 or more according to the Federal census of 1950 or any future census where the tax collector or tax commissioner is paid on a salary basis, the commission provided for herein shall be paid into the treasury of such county."
QUESTION: Assuming that an appropriate resolution had been adopted by the proper
authorities for county purposes, and a Tax Collector or Tax Commissioner had on hand tax monies which had been collected prior to the time such resolution was adopted, but for which he had not made settlement on to the fiscal authorities; would he be entitled to the additional commissions as provided for in this Act on

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such collections where settlement was made to the fiscal authorities subsequent to the date of the passage of this Act and the adoption of the resolution? ANSWER:
Prior to the above cited Act, the rates and schedules of commissions for the collection of taxes, as prescribed by Section 92-5301 of the Code, applied upon the first 90% of the ad valorem net digests collected by the tax collector. On all taxes collected in excess of 90% of the total of taxes due, according to the tax net digest, the tax collector's or tax commissioner's commission was 10% of all such collections, irrespective of the rates prescribed in Section 92-5301.
Omitting the provisions relating to counties on a salary basis, the Act of 1951 merely added the additional provision that the board of commissioners of roads and revenues or the ordinary in those counties having no board of commissioners may iby proper resolution, provide that the tax collector's or tax commissioner's commission shall be 10% of all taxes collected in excess of 80o/o of the total taxes due according to the net tax digest.
Until such officers in charge of the fiscal affairs of the county adopt a proper resolution, the provisions in the Act of 1951 do not become effective and the law in existence relative to the 90% figure remains of full force and effect as if the 1951 Act had not been passed.
As pointed out above, the law fixing the rate of compensation for tax collectors and tax receivers continues as if the 1951 Act had not been passed until such time as the board of county commissioners of roads and revenues or the ordinary in those counties having no board of commissioners adopts a proper resolution reducing the 90% figure to the 80% figure and therefore no tax collector or tax commissioner would be entitled to any change until after such resolution was properly adopted and entered on the minutes of the county board of commissioners of roads and revenues or ordinary in those counties not having a board of commissioners of roads and revenues.
The question does not turn on the date of settlement but is controlled by the date of the adoption and entering of the proper resolution.
PUBLIC REVENUE-Tax Collector A Tax Collector cannot release property from a tax lien until he has collected all of the taxes due on the property covered by such lien.
September 6, 1951
Honorable W. Harvey Atkinson Director, Property License and Tax Unit
OFFICIAL OPINION QUESTION:
Can a Tax Collector be compelled by mandamus to release from a tax lien property that is encumbered by a deed to secure debt where the grantor of the deed to secure debt owes taxes on other property that has been dissipated or disposed of and is not in existence or where the T'ax Collector can enforce a lien for taxes against such property? ANSWER:
If a 'Tax Collector can be forced by mandamus to execute a release on property that is encumbered by a deed to secure debt, it would be under the provisions of Code Section 92-5712 of the Annotated Code of Geor.gia of 1933, which reads as follows:
"Proportionate payments by owners, lienholders, etc.---'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 allowed to pay the taxes assessed against any

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one or more pieces of such property, (a) when listed separately by the owner or assessor on the tax return or digest, according 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 turn 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 subdivision of this State (including municipalities and all other subdivisions of the State and counties) 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 releasing said property shall oe paid a fee of 50 cents for issuing said receipt and release. This law shall apply to taxes accruing before its passage as well as to taxes accruing thereafter."
However, the general law setting out the priority of liens in the State of Georgia is found in Code Section 67-1701 of the Annotated Code of Georgia of 1933, which reads as follows:
"Certain liens established.-The following liens are established in this State:
1. Liens in favor of the State, Counties, and Municipal Corporations for taxes ...
5. Liens in favor of mortgages ...
Also, in this connection see Armour Fertilizer Works v. Durrence, Sheriff, et al., 176 Ga. 519, headnotes 1 and 2, which reads as follows:
"1. 'Where an owner of property conveys legal title thereto as security for a debt, retention of the equitable interest is such substantial beneficial ownership as will render him liable for taxes thereon.' Decatur County Building & Loan Asso. v. Thigpen, 173 Ga. 363 (3), 365 (160 S. E. 387).
2. Taxes shall be paid before any other debt, lien, or claim whatsoever, and the property returned or held at the time of giving in, or after, is always subject. Civil Code (1910), 1140; Verdery v. Dotterer, 69 Ga. 194 (2). This applies to all property of a taxpayer that is subject to taxation under the constitution of this State. The lien for taxes due the State is against both the owner and his property 'regardless of judgments, mortgages, sales, transfers, or incumbrances of any kind.' Decatur County B. & L. Asso. v. Thigpen, supra; Cason v. Aldred, 175 Ga. 256 (165 S. E. 221) ."
Also, see Code Section 92-5709 of the Annotated Code of Georgia of 1933, which reads as follows:
"Lien of tax not divested by judicial sale.-A sale of property under any other process shall not divest the lien of the State for taxes."
The tax lien of the State of Georgia for ad valorem is dual in its nature, being a lien in rem, and also a lien in personam, and we have in the State of Georgia, two lines of decisions, one holding that the State's lien for taxes is superior to all other liens and the other holding that a holder of a lien, other than a tax lien, may pay the taxes on the property from the Tax Collector of all taxes due on the property covered by the lien.
I am of the opinion that if a tax payer has dissipated his property and placed all of the property, except one piece that is encumbered by a deed to secure

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debt, where a levy can not be made upon such property, the property covered by the deed to secure debt would be subject to all of the taxes owed by the taxpayer and his interest in such property would be subject to levy and sale to satisfy the taxes owed on all of such property.
In view of the principles of law layed down in the case of Armour Fertilizer Works v. Durrence, Sheriff, et al., above cited (said opinion being rendered after the passage of the Act embodied in Code Section 92-5712), the Tax Collector would be without authority to release any property from a tax lien until all taxes covered by such lien have been paid.
PUBLIC REVENUE-Tax Collectors (Unofficial) Intangible taxes, N.O.D. items and utility taxes are not a part of the net tax digest returnable to the county.
August 3, 1951 Honorable Shade 0. Bartlett
This is in response to your letter of July 6, 1951, in which you requested a ruling on the following question:
"Is Intangible taxes, N. 0. D. taxes and Utility taxes a part of the Net Taxable Digest?"
It is my opinion that N. 0. D. items, intangible taxes, and utility taxes which are returnable to the Revenue Department of the State of Georgia should be included in the Net Digest of a County Tax Collector for commission purposes, but are not a part of the Net Tax Digest returnable to the county.
PUBLIC SAFETY-Driver's License The Director of Public Safety has the authority to revoke a driver's license for a period of three years upon three misdemeanor convictions, or upon three forfeitures of bail, not vacated, occuring within a period of twelve months.
March 8, 1951 COLONEL GEO. W. WILSON, DIRECTOR Department of Public Safety
OFFICIAL OPINION QUESTION:
"Under the provisiOns of H. B. No. 185, Section 7A, Sub-section (6), has this Department the authority to revoke a license for one conviction of a misdemeanor and do we have the authority to revoke a license on one forfeiture of bail for any of the offenses set forth under said Section 7A ?" ANSWER:
It is my opinion that it was the intention of the Legislature in Section 7A, Sub-section 6, House Bill No. 185, to provide for the revocation .of a driver's license for a period of three years upon three misdemeanor convictions, or upon three forfeitures of bail, not vacated, said convictions or forfeitures being upon separate charges and occurring within a period of twelve months.
It is also my opinion that the Director does not have the authority under the above mentioned Act to revoke a license upon a single conviction for a misdemeanor. It is further my opinion that the Director does not have the authority to revoke a license upon a single forfeiture.

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PUBLIC SAFETY-Driver's License (Unofficial) A judge in 1Georgia does not have the authority to revoke a driver's license issued by a foreign state.
April 30, 1951 Honorable W. W. Armistead, Judge
This will acknowledge receipt of your letter of April 20, 1951, the first paragraph of which reads as follows:
"Have I, as City Court Judge, the right or power to revoke or suspend the license of a party from another state who is arrested, brought before me, and pleads guilty to speeding or some more aggravated offense of the motor vehicle laws, the license having been issued by the other State?"
It is my opinion that as Judge of the City Court or of the Superior Court you would not have the authority to revoke a driver's license issued by a foreign State.

PUBLIC SAFETY-Motor Vehicle Safety Responsibility Act The definitions of words used in the Act shall be those ascribed to them, except where the context clearly indicates a different meaning.

Colonel George W. Wilson Director, Dept. of Public Safety

March 29, 1951

OFFICIAL OPINION PROBLEM:
An Act was passed at the 1951 session of the General Assembly providing for the giving of security in certain instances by owners and operators of motor vehicles. This Act is known as the Motor Vehicle Safety Responsibility Act. Section 1 gives the definitions of certain words and sub-section 10 reads as follows:
" 'Accident'-collision of any motor vehicle with another vehicle or with any object in which any person is killed or injured or in which damage to the property of any one person in excess of $50.00 is sustained. The word 'accident' as used in this Act shall mean 'conviction' as set forth in Section 7-A."
An interpretation of the second sentence of sub-section 10 is desired. ANSWER:
The first paragraph of Section 1 reads as follows:
"Definitions: The following words and phrases, when used in this Act, shall, for the purposes of this Act, have the meaning respectively ascribed to them in this section, except in those instances where the context clearly indicates a different meaning."
The cardinal rule of construction in the interpretation of statutes is to determine the intent of the General Assembly. To hold that the second sentence of sub-section 10 supersedes the first sentence of that sub-section would, as a practical matter, render the act incapable of enforcement. It seems to me patently clear that the General Assembly intended that the word "accident" have both meanings ascribed to it in sub-section 10 except in those instances where the context of the act clearly indicates otherwise.
Without taking each provision of the Act wherein the word "accident" appears, suffice it to say that I have reached the conclusion that the second sentence of sub-section 10 is only to be applied in section 8 and section 19.

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This simply means that an unlicensed or unregistered operator or owner of a motor vehicle would be subject to the applicable provisions of section 7-A, which section relates to the word "conviction" referred to in the second sentence of sub-section 10 of section 1. It further means that the provisions of section 7-A shall not be applicable prior to February 22, 1951.
In all other sections of the Act in which the word "accident" appears, it is clear from the context that the second sentence of sub-section 10 should not be used.

PUBLIC SAFETY-Motor Vehicle Safety Responsibility Act Operators of exempt motor vehicles under this Act are also exempt while driving such vehicles.

Honorable George W. Wilson Director, Department of Public Safety

July 9, 1951

QUESTION:

OFFICIAL OPINION

What is the status of the operators of motor vehicles exempted under Section 15 of the Motor Vehicle Safety Responsibility Act of 1951?

ANSWER: This Act is found in Georgia Laws, 1951, page 565. Section 15 thereof reads
as follows:

"This Act shall not apply with respect to any motor vehicle owned by the

United States, this State, or any political subdivision of this State, or any municipality therein; nor, except for Section 4 of this Act, with respect to any motor carriers required by any other law to file evidence of insurance or other security."

This Section exempts motor vehicles listed in the first part thereof from all of the provisions of the Act and in so doing I am of the opinion that the, operators of such vehicles while driving such vehicles are likewise exempt from the provisions of the Act.

PUBLIC SAFETY-Motor Vehicle Safety Responsibilty Act The Motor Vehicle Safety Responsibility Act of 1951 repealed the Motor Vehicle Safety Responsibility Act of 1945, and therefore no action may be taken under the 1945 Act.

Colonel George W. Wilson Director, Department of Public Safety

July 31, 1951

OFFICIAL OPINION
QUESTION: Does the Motor Vehicle Safety Responsibility Act, Georgia Laws 1945, pages
276-278, still apply, and authorize this Department to take action on judgments rendered prior to the passage of the Motor Vehicle Safety Responsibility Act, approved February 21, 1951 (Ga. Laws 1951, pp. 565-578)?
ANSWER:
Since Section 21 of the new Motor Vehicle Safety Responsibility Act,

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approved February 21, 1951 (Georgia Laws 1951, pp. 565-578) repealed the old Motor Vehicle Safety Responsibility Act, approved March 8, 1945 (Georgia Laws 1945, pp, 276-278) in its entirety and made no provision for action on judgments rendered prior to the date of the repeal, it seems that there is no authority to take any action whatever under the 1945 act.

ROADS, BRIDGES AND FERRIES-Private Roads (Unofficial) A private way which has been in use for at least one year may not be
closed without first notifying the common users of such road.
October 25, 1951
Mr. Freeman H. Bunn Your letter of October 11, 1951, received. You request that I send you the
latest laws on trying to do away with a farm road. In this connection I refer you to Sections 83-112, 83-113, and 83-114 of the
Code of Georgia, which are as follows: "83-112. Prescriptive right of way.-Whenever a private wa.y has been in
constant and uninterrupted use for seven years or more, and no legal steps have been taken to abolish the same, it shall not be lawful for anyone to interfere with said private way."
"83-113. Damages barred, when.-When a person has laid out a private way, and has been in the use and enjoyment of it as much as seven years, of which the owners have had six months' knowledge without moving for damages, his right to use becomes complete, and such owners are barred of damages."
"83-114. Closing way after one year; notice required.-When a road has been used as a private way for as much as one year, an owner of land over which it passes may not close it up without first giving the common users of the way 30 days' notice in writing, that they may take steps to have it made permanent."
If a road has been used as a private way for as much as one year, the owner of the land over which the private way passes may not close it without first giving all the common users thirty days' notice in writing. The purpose of this is to give the users an opportunity to take proper steps to undertake to make the private way a permanent one, which would give the owner an oppor tunity to show any cause why it should not be made permanent.

ROADS, BRIDGES AND FERRIES-State Highway Department 1. The violation of Section 95-1723 of the 1933 Code is not a crime or offense which may be punished in the criminal courts. 2. A judge does not have the authority to impose punishment for violation of a section of the Code where the Legislature has failed to provide a punishment.

Hon. George W. Wilson, Director Department of Public Safety

April 12, 1951

OFFICIAL OPINION
QUESTIONS: 1. Is the violation of Code Section 95-1723 of the Annotated Code of
Georgia of 1933 a crime or offense for which the offender may be punished in the
criminal courts? 2. Does a judge have authority to impose punishment or penalty for

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violation of a section of the Code which is not declared to be a misdemeanor or a crime? ANSWER:
1. Code Section 95-1723 of the Annotated Code of Georgia of 1933, provides as follows:
"The State Highway Department is authorized to ascertain and determine the maximum load or weight that can, with safety, be transported over any bridge and its approaches on a State-aid road. The State Highway Department shall be authorized to post on any such bridge a legible notice showing the maximum amount which it has been ascertained such bridge or its approaches can carey with safety. It shall be unlawful for any person to haul, drive or otherwise bring on such bridge or its approaches, any load or weight exceeding the rated capacity so ascertained and posted, and any person hauling, driving or otherwise bringing on any such bridge or its approaches any load or weight exceeding the rated capacity so ascertained and posted shall do so at his own risk, and the State shall not be liable for any damages to persons or property that may result therefrom."
It is my opinion that the violation of the above quoted Code Section is not by law made a felony or misdemeanor and therefore could not be punished as such.
2. The courts are without jurisdiction to impose punishment in a case where the Legislature has failed to provide a punishment.
ROADS, BRIDGES AND FERRIES-State Highways (Unofficial) The State Highway Department has the authority to condemn private property to build sidewalks, curbs, gutters and other drainage ditches for State- aid roads.
July 24, 1951 Mr. R. S. Townsend
This will acknowledge your letter of July 19, 1951, in which you state the following:
"I need some information in regard to roads, Federal and State projects. Do they have authority to condemn private property to build sidewalks, curbs and gutters? Do they have authority to condemn land to build ditches for personal drainage?"
In answer to your questions I wish to call your attention to Section 95-1715 of the Code of Georgia Supplement as follows:
"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 combination 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 1Georgia 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."
It can be seen by this section of the 'Code that the Department is given very broad authority and discretion to construct, improve and maintain the State-aid roads in any manner that it may deem expedient. I am therefore of the opinion that this is full authority for the Department in the exercise of its discretion to construct paved sidewalks through municipalities or other congested

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sections, thus removing pedestrians from busy highways and increasing the efficiency of busy arteries of traffic. It therefore follows that the Department would have the authority under the law of eminent domain which is set out in Title 36 of the Code of Georgia, and especially in Chapter 36-11 of the Code, to condemn private property for the purpose of constructing sidewalks, curbs and gutters. I am of the further opinion that the Department would have authority to condemn private property for any and all necessary drainage ditches in connection with the construction and maintenance of any road or highway on the State Highway System. Of course, this does not include ditches for drainage of private property owned by individuals unless it is in connection with the proper drainage of the road or highway.

SOCIAL WELFARE-Georgia Factory for the Blind 1. The Georgia Factory for the Blind is not authorized to post a performance bond to insure the fulfillment of one of its renovation contracts. 2. The Georgia Factory for the Blind is not authorized to use State funds to pay for public liability insurance for its truck drivers while driving State trucks.

Honorable Allen Kemper Director, State Department of Public Welfare

November 28, 1951

FACTS:

OFFICIAL OPINION

The Georgia Factory for the Blind, a unit under the jurisdiction and control

of the State Department of Public Welfare, desires to post a $5,000 performance

bond with one of its customers to insure the fulfillment of a renovation contract.

This agency recognizes that the State may not be sued without the consent

of the Legislature, but that the drivers of their factory trucks may be pen;onally

liable for tortitious acts, and as a protection to such drivers, desires to purchase and pay from State funds public liability insurance to cover their truck drivers.

QUESTIONS:

1. Is the Georgia Factory for the Blind legally authorized to post a

$5,000 performance bond to insure fulfillment of a renovation contract between

the Factory for the Blind and one of its customers'! 2. Can the 'Georgia Factory for the Blind use State funds to pay for public

liability insurance for its truck drivers while driving State trucks?

ANSWERS: 1. It is my opinion that the State of Georgia, not being liable to suit without
its consent and there being no legal authority authorizing the State Department of Public Welfare or its unit known as the Georgia Factory for the Blind, to enter into a bond or contract which would indemnify one of its customers for the failure of the Factory of the Blind to perform the terms of any contract between it and such person, would be unauthorized since it would be in effect creating an obligation or debt against the State in violation of the Constitutional prohibitions against the creation of debts except for the enumerated purposes stated in the Constitution of Georgia. Article 7, Section 3, Paragraph 1 of the Constitution of Georgia provides that no debt shall be contracted by, or on behalf of the State, except for the enumerated exceptions stated therein and these exceptions do not contain any authority for an agency of the State to execute a bond guaranteeing the performance of the terms of a contract existing between a State agency and other persons dealing with such agency.

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2. My predecessors in office and I have several times previously ruled (See Opinion of Attorney General T. Grady Head, dated Feb. 18, 1943 and opinion dated Aug. 9, 1948, Opinions of the Attorney !General, 1948-1949, p. 86) that since the State of Georgia is not liable to suit without its consent and is not liable for torts of its officers, agents and employees unless made so by law, there is no legal duty resting on the State to procure liability insurance for the protection of its officers, agents and employees.
In the absence of such a legal duty, it would be improper to expend State funds to procure such insurance, and contracts for liability insurance covering employee operators of State-owned and operated motor vehicles are not legally authorized.

SOCIAL WELFARE-Old Age Assistance It is not mandatory that claims be filed against the estate of recipients of old age assistance.

Honorable Herman E. Talmadge Governor of Georgia

June 14, 1951

OFFICIAL OPINION QUESTION:
"Is Senate Bill No. 190, approved February 21, 1951 (Georgia Laws 1951, pp. 466) mandatory in requiring claims to be filed against recipients of old age assistance or is it permissive thereby vesting in the Director of the State Department of Public Welfare administrative discretion in requiring such claims to be filed against the estate of recipients of old age assistance?"
ANSWER: Section 1 of the Act approved February 21, 1951 (Georgia Laws 1951, pp.
466), which is an amendment to the Old Age Assistance Act of 1937 (Georgia Laws 1937, pp. 311 etc.) provides in part:
" ... The Director of the State Department of Public Welfare may require the local board of public welfare of the county in which the deceased resided to execute and acknowledge ... a notice of such claim showing the total amount paid as such assistance, which notice may be filed within sixty days after the death of the deceased recipient, with the clerk of the court authorized to record deeds in the county or city where the real estate of such recipient subject to such claim is situated ... "
"No such claim shall be enforced against any real estate of the estate of the recipient, however, while such real estate is occupied by the surviving spouse of the recipient so long as such spouse remains unmarried ,or is occupied by any dependent infant child or children of the recipient."
From a review of the original Old Age Assistance Act of 1937 and the 1951 amendment in question and considering the clear language of the abovecited Section 1 of the 1951 Act, I am of the opinion that it was the intent of the !General Assembly to vest by this Act in the Director of the State Department of Public Welfare permissive and discretionary authority to cause claims to be filed against those groups or persons who had concealed or failed to reveal to the county welfare departments their ownership of property above the maximum allowed under the regulations of the State Welfare Department, pursuant to the original Old Age Assistance Act of 1937.
It is my further opinion that the Director of the State Department of

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Public Welfare, being vested by such Act with such permissive and discretionary administrative authority, would be authorized to promulgate such reasonable and necessary rules and regulations so as to effectuate the intent of the :General Assembly as above stated.
SOCIAL WELFARE-Old Age Assistance (Unofficial) Any person who is dissatisfied with any decision of a county board of welfare on old age assistance may appeal to the State Department of Welfare, whose decision will be final.
June 29, 1951 Mr. B. F. Jackson
Replying to your letter relative to old age assistance, I am pleased to advise that the Old Age Assistance Act of 1937 provides that any person who is dissatisfied with any decision of a County Board of Welfare may file an appeal in writing with the State Department of Public Welfare and be entitled to and have a hearing in the County of the residence of the complaining recipient or applicant. The decision of the State Department of Public Welfare shall be binding upon the County Department of Public Welfare.
SOCIAL WELFARE-Recipients (Unofficial) The recipients of social welfare benefits must be kept secret unless congress shall repeal the law requiring such information to be kept confidential.
April 18, 1951 Honorable James T. Manning
This will acknowledge your letter of March 31, 1951 relative to the desire of the Grand Jury of Cherokee County to examine the old age assistance, aid to the blind and aid to dependent children list of recipients in said county.
Paragraph 8, Sub-section (a), Section 302 of Title 42, United States Code Annotated, provides that as a pre-requisite to the receiving of funds from the Federal Government for old age assistance, the State Department of Public Welfare "shall provide safeguards which restrict the use of or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of old age assistance."
Any deviation by the State Department of Public Welfare from the provisions of this section of the United States Code would cause the old age assistance funds of the State to be withheld.
The General Assembly of Georgia has memorialized Congress to repeal the above-cited federal statute which makes old age assistance rolls of a confidential nature. Of course this is only a request and does not affect the existing federal law.
If the Grand Jury has under consideration any specific matter which has come to their attention requiring iGrand Jury action due to a fraudulent or unlawful act of a recipient or any person connected with such grant, I would suggest that they communicate through the proper channels with the State Director of Public Welfare, requesting him to allow the Grand Jury to see the specific record and assure him that it will not be used for any purpose except for investigation of some illegal act concerning a State grant and that the secrecy of the Grand Jury proceedings relative thereto will be preserved.

436

STATE BOARD OF CORRECTIONS-Care of Prisoners It is an obligation of the State Board of Corrections to pay for expenses in the care of a prisoner waiting to be delivered to the State Board of Corrections by the county authorities.

Honorable R. E. Warren, Director State Board of Corrections

March 19, 1951

OFFICIAL OPINION
FACTS:
Louise Johnson of Vidalia, Georgia, was convicted on September 16, 1950, and was given a 12 months' sentence which was probated. On November 9, 1950, the subject was taken before the court and her probation was revoked. While she was confined in jail, waiting to be delivered to the State Board of Corrections and before the commitment papers were furnished to the State Board of Corrections, the prisoner became ill and the sheriff sent the prisoner to the hospital where she received professional medical and surgical care.

QUEST'ION:
Would the expense incurred under the above stated facts be an obligation of the State Board of Corrections or would it be an obligation of the county wherein the prisoner was confined?

ANSWER
Code Section 77-110 of the Annotated Code of Georgia of 1933, provides as follows:
"It shall be the duty of the sheriff-
"To take from the preceding sheriff custody of the jail and the bodies of such persons as are confined therein, with the precept, writ, or cause of detention.
"To furnish prisoners with medical aid, heat, and blankets, to be reimbursed, if necessary, from the county treasury; and to suffer a penalty for neglect, as prescribed in this Code.
"To take all prisoners arrested, or in execution under any criminal or civil process, to the jail of an adjoining county, or to the jail of some other county when more accessible, if the jail of the county shall be in an unsafe condition, under such rules as are prescribed in this Code."
Code Section 77-111 of the Annotated Code of Georgia of 1933, provides as follows:
"If any sheriff or deputy shall fail to comply with the provisions of Section 77-110, he shall be fined for a contempt, as the clerk of the superior court is in similar cases. Section 24-2724 shall also apply to sheriffs."
It is my opinion under the facts above stated that the obligation incurred would not be an obligation of the State Board of Corrections, but would be an obligation of the county wherein the prisoner was confined.

437
STATE PARK AUTHORITY-Contracts The Division of State Parks, Historic Sites and Monuments of the Department of Natural Resources is authorized to contract with the State Park Authority for the operation and maintenance of the Confederate Memorial Park at Stone Mountain, and no debt against the State would be created except where appropriations have been made by the General Assembly to assume obligations under the agreement.
February 16, 1951
Honorable Herman Talmadge Governor of Georgia
OFFICIAL OPINION FACTS:
The State Park Authority has submitted to the Division of State Parks, Historic Sites and Monuments of the Department of Natural Resources, a proposed agreement whereby the Park Authority, upon its completion of the Confederate Memorial Park at Stone Mountain, and in the event that the income from revenues of all sources should become insufficient to provide funds for operation and maintenance of said Park, that the Division of State Parks, if appropriations are made by the General Assembly for such purpose, and upon request of the Governor, execute a lease for a nominal consideration whereby the Division of State Parks will operate and maintain said Park until such time as the project becomes entirely self-supporting and all funds used by the Division of State Parks in the operation and maintenance of said Park have been fully repaid by the State Park Authority or from funds derived from the operation of said Park. Under the proposed instrument, the Division of State Parks assumes no responsibility or liability for the payment of any revenue bonds or certificates issued by the State Park Authority. Such funds as are necessary for the payment of interest and retirement of such bonds or certificates are to come solely from revenues derived from the operation of the Confederate Memorial Park and not from State funds. QUESTION:
Would the Division of State Parks, Historic Sites and Monuments of the Department of Natural Resources of the State of Georgia be authorized to enter into such proposed agreement with the State Park Authority and would the State be required to assume any obligation thereunder except where appropriations have been made by the General Assembly for such purpose'? LAW:
Article 7, Section 6, Paragraph 1 of the Constitution of Georgia provides in part:
"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 subdivision 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."
The above provision of the Constitution, as originally proposed by the Act of 1941, page 50, and ratified June 3, 1941, did not include the State and State institutions, however the State and State institutions were included in the 1945 amendment to the Constitution of Georgia, ratified on August 7, 1945.
Under an Act approved March 27, 1941 (Acts of 1941, pp. 257, 258), the General Assembly of Georgia created a corporate body to be known as the

438
State Park Authority and provided that it shall be deemed to be an instrumentality of the State of Georgia and a public corporation, to have perpetual existence. It was granted the power and authority to make all necessary rules and regulations for its own government. Among the various grants of power given to this Authority, it was authorized to acquire, under such terms and conditions as it may deem proper, such real and personal property necessary to construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate and manage self-liquidating projects, the cost of which to be paid solely from the proceeds of revenue bonds of the Authority, which included the completion of the Confederate Memorial on the side of Stone Mountain and the operation of the same, together with such land adjacent thereto as may be acquired by the Authority for housing accommodations, utilities and facilities as may be placed on said land by the Authority, as a park or recreational areas, lake or housing accommodations and utilities and other facilities deemed by the Authority necessary or convenient for the efficient operation of such park, recreational areas, lake or housing accommodations.
Under an Act approved March 5, 1937 (Acts of 1937, pp. 264-274), the General Assembly of Georgia created and established the Division of State Parks, Historic Sites and Monuments as a separate division operating under the Department of Natural Resources.
Section 43-137 of the 1933 Annotated Code, Pocket Supplement, codified from the above-cited 1937 Act, provides:
"All parks and recreational areas heretofore or hereafter acquired by the State shall constitute the State Park System, and shall be under the immediate control and management of this Division."
Section 43-138 of the 1933 Annotated Code of Georgia, Pocket Supplement, also codified from the above-cited 1937 Act, provides:
"To acquire in the name of the State, by purchase, lease, agreement or condemnation, such land within the State as it may deem necessary or proper to the extension of the State Park System . . . provided, no land or other property shall be taken or contracted to be taken unless or until the General Assembly has appropriated money therefor or funds have otherwise become available for said purpose."
"To contract and make cooperative agreements with the United States Government, political subdivisions of the State, corporations, associations, or individuals, . . . to protect, restore, preserve, mark, maintain or operate any historic, archaeological 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 'General Assembly has appropriated money therefor or funds have otherwise become available for said purpose."
OPINION: Under the provisions of Article 7, Section 6, Paragraph 1, of the 1945
Constitution of Georgia and Sections 43-137-8 of the Code, it is clear that the Division of State Parks of the Department of Natural Resources and the State Park Authority have the power to enter into an agreement as proposed, provided that in doing so no debt is created against the State. Therefore, it becomes necessary to analyze the proposed instrument to determine if it will create a debt against the State, and if it conflicts with Sections 43-137-8 of the Code.
The instrument provides that if at any time after the completion of the Confederate Memorial Park at Stone Mountain the revenues derived from the operation thereof be insufficient to meet the obligations for debt service and

489
provide for the operation and maintenance of the park, the State Park Authority will, upon request of the Governor, execute a lease for a nominal consideration to the Division of State Parks of all the property and facilities of the Authority and deliver over the entire management and control of the Confederate Memorial Park at Stone Mountain and all facilities therein to the Division of State Parks until such time as the project is entirely self-supporting and all funds used by the Department of State Parks in the operation and maintenance of said Park have been fully repaid by the State Park Authority or from funds derived from the operation of said Park by the Division of State Parks.
The Division of State Parks, under the instrument, would agree, after the State Park Authority has completed the Confederate Memorial Park, and if the funds available to the Park Authority from all sources should be insufficient to provide the necessary funds for the operation and maintenance of the Park, and if appropriations are made for such purpose, as required by law, subject to the approval of the Governor, execute a lease for a nominal consideration with the State Park Authority and guarantee the continuous operation and maintenance of the Park so long as any of the revenue bonds of the Authority remain unpaid. The revenue bonds are issued for a period of thirty years.
Viewed in its greatest effect as to creating a debt on the part of the State, the proposed instrument is merely an agreement between a Department of the State Government of Georgia and the State Park Authority; an instrumentality created by the State to perform a governmental function, i. e., development and operation of parks for the use of the public, whereby these two agencies agree to execute a lease for public purposes only upon the event of the General Assembly of 'Georgia approving such instrument by appropriating funds for such purpose and upon the further approval of the Governor.
Nowhere in the proposed instrument is there any provision obligating the State to do anything or to assume any obligations of any kind until and after the General Assembly has appropriated funds for the purpose of operating and maintaining the Confederate Memorial Park. Likewise there is no provision which requires or obligates the State in any manner or form to assume any liability for or to pay from State funds any interest or principal on any revenue bonds or certificates issued by the State Park Authority in acquiring and constructing the Confederate Memorial Park at Stone Mountain.
The proposed instrument could not, under any reasonable legal theory, be deemed as creating a debt against the State since it is only an agreement on the part of the State Park Authority to lease to the State for a nominal consideration the Confederate Memorial Park, if the General Assembly approves by making available funds for such purpose.
The proposed instrument in no way conflicts with the provisions of the Acts of 1937, pages 264-275, but on the other hand tracks this statute in that no lease will be executed or lands taken over under the provisions thereof until the General Assembly appropriates funds for such purposes.
It is my opinion that the Division of State Parks, Historic Sites and Monuments of the Department of Natural Resources would be authorized to execute the proposed instrument with the State Park Authority and that no debt against the State would be 'created under the terms thereof.

440
STATE SCHOOL BUILDING AUTHORITY-Authority The State School Building Authority is authorized to build and operate recreational facilities for educational institutions.
May 18, 1951
Honorable Fred Hand Speaker, House of Representatives
OFFICIAL OPINION QUESTION:
Can the State School Building Authority build a combination baseball and football stadium, the certificates to be retired by pledging ticket receipts? ANSWER:
As you know, the State School Building Authority is similar to the various other authorities which have been created by the General Assembly. As such it is not a department or agency of the State Government but is similar to a private corporation except that it is created for public purposes and is a public corporation with general authority to do any and all of the acts or things authorized in the Act of the legislature creating such authority. These authorities not being departments ar.d agencies of the State are not bound by the usual constitutional and financial restrictions placed upon such State agencies.
In Section 3 (b) of the State School Building Authority Act will be found the following language:
"The word 'project' shall be deemed to mean and include one or a combination of two or more of the following: building and facilities intended for use as school buildings, classrooms, laboratories, libraries, and instructional, administrative, and recreational facilities for students, faculty, officers, and employees of any institution or unit under the control of a county board of education, city board of education or governing bodies of independent districts or systems, and all structures, electric, gas, steam and water utilities and facilities of every kind and character deemed by the authority necessary or convenient for the efficient operation of any unit which is a part of any such institution, including the improving, altering, or repairing of the same."
You will note that the above-cited statutory provision contains the language, "recreational facilities for students, faculty, officers, and employees of any institution or unit under the control of a county board of education, city board of education or governing bodies of independent districts or systems."
It would be my view that the State School Building Authority has the discretionary power to construct and lease to a county, city or independent school system any type or kind of recreational facility for the students, faculty, officers and employees of such systems. The question as to whether or not the Authority would be justified in a financial, contractual relation with such agencies or in constructing such type of buildings is one which addresses itself to the administrative discretion of the State School Building Authority and should be thoroughly and seriously considered in relation to the fundamental cause for the creation of such Authority, i. e., public school buildings.
Attention is also called to the provisions of Section 4, Sub-section (6) of the State School Building Authority Act which provides as follows:
"(6) To construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate and manag,e projects, as hereinabove defined, to be located on property owned by or leased by the authority, the cost of any such project to be paid in whole or in part from the proceeds of revenue bonds of the authority or from such proceeds and any grant from the United States of America or any agency or instrumentality thereof, or from any other source."

441
It is my view that the above statutory provisions authorize the Authority itself to operate and manage any of the projects enumerated in the first part of this letter. This power and authority likewise address themselves to the sound administrative discretion of the State School Building Authority.
STATE SCHOOL BUILDING AUTHORITY-Eligibility The members of said authority do not hold an office within the meaning of the Constitution and therefore a member of the General Assembly is eligible to serve on said authority.
March 29, 1951
Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUES'TION:
Is the Speaker of the House of Representatives of the 1951 session of the General Assembly authorized to hold an appointment on the State School Building Authority created at the 1951 session of the General Assembly? ANSWER:
The pertinent provision of law is found in Article 3, Section 4, Paragraph 6 of the 1945 Constitution (Code Section 2-1606), which reads 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, 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 so elected no Senator or Representative shall be appointed to any civil office which has been created during such term."
I am of the opinion that the State School Building Authority is a corporate body and a distinct entity in and of itself. The members of said Authority receive no emolument and I am of the opinion that such members do not hold an office within the meaning of the Constitutional provision quoted above. I therefore reach the conclusion that the Speaker of the House of Representatives is eligible to serve as a member of the State School Building Authority.
WARM SPRINGS MEMORIAL COMMISSION-Purchases There is no authority for the State to purchase property, through the Governor or other agency, without funds being first appropriated by the General Assembly.
June 28, 1951 Honorable Herman E. Talmadge Governor of Georgia
OFFICIAL OPINION QUESTION:
Can the State, through the !Governor or other agency of department, make available funds for the purchase of 500 acres of land by the Franklin D. Roose-

442
velt Warm Springs Memorial Commission without an act of the General Assembly appropriating the funds to that Commission? ANSWER:
The Franklin D. Roosevelt Warm Springs Memorial Commission was created by an Act of the General Assembly (Georgia Laws 1946, pages 31 and 32). This Act was approved January 31, 1946 and authorized the Commission as an agency of the State to create and maintain a memorial to perpetuate the memory of the late Franklin D. Roosevelt, and provided therein the Commission's duties, powers and authority. No appropriation of State funds is contained in said Act.
An amendment to the General Appropriations Act of 1943 was made by the General Assembly on January 31, 1946 (Ga. Laws 1946, pages 6-7) so as to appropriate $200,000.00 to aid in carrying out the provisions contained in the Act creating the Franklin D. Roosevelt Warm Springs Memorial Commission.
Section 2 of the amendment to the 1943 Appropriations Act provided that the Commission shall treat the appropriated sum as a loan and that the Commission shall repay it to the State of Georgia out of the first funds available for this purpose after the memorial has been completed. This appropriation by the General Assembly was further limited by the Governor's conditional approval on January 31, 1946 that the $200,000.00 shall not be a recurring item but shall constitute a total appropriation for the fiscal year beginning July 1, 1946, and that year only, and provided further that surplus funds are available from which to pay the said appropriation.
This is to advise that I do not find any authority where such purchase may be made by the Governor or any other agency or department without the funds being first appropriated by the General Assembly.

WARM SPRINGS MEMORIAL COMMISSION-Purchases Purchases by the Warm Springs Memorial Commission are subject to the general statutory budgetary requirements, as are other state departments.

Mr. G. C. Thompson, Vice-Chairman Franklin D. Roosevelt Warm Springs Memorial Commission

December 21, 1951

OFFICIAL OPINION FACTS:
The Franklin D. Roosevelt Warm Springs Memorial Commission has received a donation of funds for the specified purchase of certain lands which adjoin the present properties of the Commission, and which would become a part of the present memorial park.
QUESTION: Can the Commission, under the Act of the !General Assembly by which it was
created, proceed to negotiate for and purchase the lands or must the purchase be controlled by the Finance Commission and be made under the general statutory budget requirements law?
ANSWER: In an opinion dated August 25, 1947 to the Secretary-Treasurer of the
Franklin D. Roosevelt Warm Springs Memorial Commission, Opinions of the Attorney General, 1945-1947, page 550, it was held by the Attorney General.
" ... the Memorial Commission which was created by an Act of the Legislature, approved January 31, 1946, (Ga. L. 1946, pp, 31-34), is not a body corporate

443
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 ... "
In an opinion dated April 12, 1948 to the Secretary-Treasurer of the Franklin D. Roosevelt Warm Springs Memorial Commission, Opinions of the Attorney General, 1948-1949, page 352, the Attorney General held:
"Inasmuch as we have already ruled that the Commission is an instrumentality of the State !Government, it would be as in case of all other instrumentalities, subject to its funds being deposited in the State Treasury, the accounts kept in accordance with the rules and regulations of the State Auditor and audited by him in accordance with his duties under the law."
Section 40-2406 of the 1951 Cumulative Pocket Part of the 1933 Annotated Code of Georgia provides in part as follows:
"The Commission shall have the following powers:
* * * * * *
"(3) To accept donations, grants, and subsidies from any source and use same in purchasing and improving such property as the Commission may deem necessary to effectuate the aims and purposes of the Commission.
* * * * * *
"(6) To acquire in its own name by donation or by purchase on such terms and conditions and in such manner as it may deem proper, in accordance with and subject to the provisions of law, real property or rights or easements therein or franchises necessary or convenient for the purposes herein specified, and to use the same so long as the Commission shall be in existence, and to lease or make contracts with respect to the use of, or dispose of the same in any mannor it deems to the best advantage of the Commission." (Underscoring supplied.)
The Franklin D. Roosevelt Warm Springs Memorial Commission being a department of State Government would be subject to the control of its finances by the State Budget Bureau.
In the event the Commission receives a donation of funds for a specified purchase of lands adjoining the present properties of the Commission, such funds would be in the nature of a trust fund and should be deposited in the Commission 'freasury to be used for the specific purpose for which such funds were donated, and the Commission would be authorized to make a budgetary request for an expenditure of such funds in keeping with the terms of the trust.
It is my opinion that the Franklin D. Roosevelt Warm Springs Memorial Commission being a department of the State Government is not exempt from the general statutory budgetary requirements but is on the same basis as all other State Departments in this respect.

PART IV
INDEX TO THE OPINIONS OF THE ATTORNEY GENERAL

447

INDEX TO OPINIONS OF THE ATTORNEY GENERAL

Page

ABSENTEE VOTING See Elections

ACCOUNTANTS See Professions, Businesses and Trades

ACTS OF GENERAL ASSEMBLY
See Constitution of State
Amendment to Act may be made at same session ---------------------- 318 Jurisdiction may be ceded by Act but not by Governor --------------'-~ 75 Railroad tracks may be relocated only by express legislation ------~--- 206

AD VALOREM TAX See Public Revenue

ADJUTANT GENERAL See Public Defense

ADVERTISEMENTS

Constitutional amendments published in each county

63

AGRICULTURE

Agricultural Commodities Act unconstitutional

234

Commissioner can not dispose of State property

235

ALCOHOL See Georgia Commission on Alcoholism; Intoxicating Liquors; Public Revenue

AMENDMENT See Constitution of State

APPROPRIATIONS Education for spastic and cerebral palsy children directed ------------ 279 Housing Authority Board may spend funds appropriated to State Treasury for cost of operating Housing Act ---------------- 100 Military Department funds not used for Civil Defense ---------------- 153 Parks system may not use specific appropriation for general operation __ '79 Purchases may not be made before appropriation -------------------- 441 Specific appropriations not available for other use ------------------ 79 State Guard will require appropriation if National
Guard in Federal service ---------------------------- _------------ 153

ARCHITECTS See Professions, Businesses and Trades

AUDITOR See State Auditor

AUTOMOBILES See Public Revenue; Public Safety School Boards may use tax funds to insure automobiles used to teach safe driving to pupils -------------------------------- 51

BANKS AND BANKING Branch bank law applies to National as well as State banks ---------- 1

448
Page
Checks, criminal prosecution for passing worthless -------------------- 32 Interest rate, eight per cent highest lawful -------------------------- 235 Investment:
Limitations on investments of banks ------------------------------ 2 State Banks authorized to invest in
University System Building Authority bonds ---------------------- 290 State Banking Department under Merit System ---------------------- 77 Trust capacity, non-resident bank may not act ------------------------ 236
BEER See Public Revenue Females, employment in malt beverages store not prohibited ------------ 111
BETTING See Contracts
BEVERAGES See Public Revenue Females, employment in malt beverages store not prohibited ------------ 111
BILLIARD TABLES See Public Revenue; Veterans
BIRTHS AND DEATHS See Vital Statistics IA:tw
BLIND PERSONS See Social Welfare
BONDS See specific heads Investment in University System Building Authority Bonds ------------ 290 Public Employees Honesty Blanket Position Bond interpreted ---------- 73
BOUNDARIES, JURISDICTION AND TIME OF THE STATE Time, entire State observes Eastern Standard ------------------------ 3
BRIDGES See Roads, Bridges and Ferries
CARRIERS See Public Revenue
CEREBRAL PALSY Education of children with cerebral palsy --------------------------- 279
CERTIFIED PUBLIC ACCOUNTANTS See Professions, Businesses and Trades
CHARITABLE INSTITUTIONS See Public Revenue
CHECKS Passing worthless checks a misdemeanor ---------------------------- 32
CHILDREN See Parent and Child; Husband and Wife; Minors

449

Page
CHIROPRACTORS See Pl'ofessions, Businesses and Trades
CHURCHES See Public Revenue Malt beverages, sale near church not prohibited ------------------ __ 159
CIGARS AND CIGARETTES See Public Revenue
CITIZENS See Persons; Elections Conviction of crime involving moral turpitude disfranchises ------------ 298 Pardon restores full citizenship ------------------------------------ 124
CITY COURTS See Courts
CIVIL DEFENSE See Public Defense
CLERKS OF COURTS See Courts
COLLEGES See Education
COMMERCE See Public Revenue

COMMISSION OF LUNACY Ordinaries issue writs of lunacy ------------------------------------ 252 Physician not essential to commission ___ _:__________________________ 242

COMMISSIONERS OF ROADS AND REVENUES See Counties
CONSTABLES See Courts

OONSTITUTION OF THE STATE

Acts of General Assembly:

Agricultural Commodities Act is unconstitutional ------------------ 234

Classifications which are unreasonable render Act void --------------~, 8

Delegation of legislative power unconstitutional ---------------- 93, 2:l4

Retroactive laws prohibited only when injurious ------------------- 14

Trustee Savings Act partially unconstitutional -------------------- 102

Amendments:

Advertisement in newspapers ------------------------------------ 63

Certification of returns of voting on amendments ------------------ 10

Manner of submission -------------------------------------------- 291-

Conferedate Widows' Pensions, qualifying date ------------------------ 135

Debt, installment plan purchase by county prohibited ---------------- 242'

Donation or gratuity, award based on moral

consideration to State not unconstitutional ------------------------ 5

Freedom of the Press

115

450

Page

Governor, having served part-term, eligible for full-term ------------ 6 Insurance companies, constitutional provisions ------------------------ 102

CONTRACTS
Construction of Contracts ------------------------------------------ 221 Gambling contracts are against public policy ------------------------ 237 Highway Department, liability on road contracts -------------------- 207 Trustee Savings Act, contracts thereunder as life insurance ------------ 102

CONFEDERATE WIDOWS See Pensions

CORONERS

See Counties

Coroner ineligible to serve on County Board of Education

274

CORPORATIONS Debenture Preferred Stock:
Charter fee ------------------------------------------------------ 238 Intangibles tax --------------------------------------------------- 183 Domesticated f,oreign corporations, rights and privileges -------------- 239 Insurance companies:
Charters, duration of -------------------------------------------- 325 Organization meetings -------------------------------------------- 105 Regulation by Trustee Savings Act ------------------------------- 102 Securities required ---------------------------------------------- _ 109

CORRECTIONS, BOARD OF See Prisons and Prisoners

COUNTIES Bond premiums, payment of county officers' ------------------------ 14 Coroners: Absence, coroner can not deputize one to act for him -------------- 240 Dead bodies, removal before arrival of coroner ------------------- 241 Osteopath may prepare death certificate ------------------------ 142 Vital Statistics Act of 1945, duties under ------------------------ 240 Debt, installment plan purchase prohibited ---------------------------- 242 Fireworks controlled 'by county authorities -------------------------- 243 Loans, temporary, may be obtained -------------------------------- 248 Lunacy Commission, practicing physician not required -------------- 242 Officer of county may also be city officer ---------------------------- 336 Ordinaries: Vacancy in sheriff's office filled by appointment ------------------ 23 V,oting places, duty to provide -------------------------------------- 71
Sheriff, fees ---------------------------------------------------- 25,243 Solicitor General's expense account, county can not certify ------------ 255 Tax Assessors:
Compensation ---------------------------------------------------- 245 Thfembership of Board, number ------------------------------------ 15 Thfembership of Board, how appointed ------------------------------- 245 Tax Collectors:
Commissions ------------------------------------ ---------------- 247 Depository, no authority to determine ------------------------------ 246

451
COUNTY BOARDS OF EDUCATION See Education
COUNTY OOMMISSIONERS See Counties
COUNTY DEPOSITORIES Tax Collector has no authority to select depository -------------------- 246
COUNTY OFFICERS See Counties
COURTS City Courts: Judge of City Court also Treasurer of State Highway Board ________ 210 Solicitor of City Court also member of General Assembly __________ 16
Constables, fees ---------------------------------------------------- 249 Courts-martial, execution of warrants by Sheriff -------------------- 31 Jurors, number in City and County courts ---------------------------- 250 Justices of the Peace:
Costs, collection in cases involving warrants ------------------------ 20 Costs, plaintiff liable in civil action -------------------------------- 250 Refusal to serve, suit in adjoining district ------------------------ 20 Residence of Justice outside jurisdictional area -------------------- 251 Juvenile Gourt, Judge of Superior Court may appoint Judge of City Court to act as Judge of Juvenile Court -------------------- 17 Ordinaries: Commissioners to lay out Militia District, appointment ------------ 252 Drunkenness on public road, jurisdiction to try cases ---------------- 204 Explosives, licenses for dealers ---------------------------------- 24 F'ees, return of land processioners ---------------------------------- 269 Gross Weight statute, trial of v1olators ------------------------- _ 21 Lunacy, Ordinary may issue writ ---------------------------------- 252 Sheriff, vacancy filled by appointment ------------------------------ 23 Traffic cases, jurisdiction not exclusive ---------------------------- 21 Recorder of Police Court, issuance of warrants ------------------------ 123 Sheriff, fees ___ ------------------- _____ -------------------- _____ 25, 254 Solicitors General: Expenses, certification to State for payment ------------------------ 255 Fees ------------------------------------------------------------- 27 Superior Courts: Clerks, fees---------------------------------------------------- 28,255 Clerks, transcript on appeal transmitted before payment of costs ____ 256 Judge can not revoke parole issued by State Board ---------------- 128 Judges Emeritus ineligible to be members of General Assembly ________ 19 Judges' Retirement Fund -------------------------------------- 29, 30 Reporters, compensation ----------------------------------------- 253 Warrants issued by Courts-martial, execution by Sheriff -------------- 31 Witness fee not payable State Revenue Agent ------------------------ 31
COURTS-MARTIAL Warrants, execution by Sheriff -------------------------------------- 31
CRIMES AND PUNISHMENT Abandonment of minor child, definition and punishment -------------- 257

452
Page
Adultery, definition and punishment ---------------------------------- 257 Bestiality, definition and punishment -------------------------------- 257 Bigamy, definition and punishment ----------------------------------- 257 Bridges, transporting excessive weights thereon not crime ------------ 431 Burglary, definition --------------------------------------------- ____ 259 Certified Public Accountants, unauthorized practice -------------------- 137 Desertima, definition and punishment -------------------------------- 257 Emblems, .unauthorized use of benevolent, fraternal, social ------------ 34 Family, Cl-imes against, definitions and punishments ------------------ 257 Felony, definition and punishment ------------------------------- 259, 263 Larceny, definition ------------------------------------ ________ 259, 263 Lottery, operation a misdemeanor ------------------------------------ 259 Misdemeanor, definition and punishment ------------------------- 259,263 Moral turpitude, conviction involving, disfranchises --------------------- 298 Murder, no degrees of this crime ----------------------------------- _ 260 Nudism per se prohibited ------------------------------------------- 262 "Peeping Toms" and eavesdroppers, misdemeanor -------------------- 33 Picketing which interferes with work, misdemeanor -------------------- 32 Posted, lands, hunting on, misdemeanor ------------------------------ 88 Rewards for apprehension of felons --------------------------------- 301 Seduction, definitions and punishment -------------------------------- 257 Sodomy, definitions and punishment -------------------------------- 257 Worthless checks, presumption of intent to defraud -------------------- 32
CRIMINAL PRIOCEDURE Costs .in criminal case not collectible until after conviction -------------- 265 Jurors, defendant may waive rights and be tried by ten ---------------- 267 Real Estate Commission, prosecution of violators -------------------- 145 Recorder of Police Court, issuance of warrants ------------------------ 123 Sentence, no time specified for disposition ---------------------------- 267 Trial of defendant on two indictments at one trial -------------------- 267 Warrants, officers authorized to issue and serve -------------------- 31,268
DEAD BODIES See Counties, coroners
DEATHS See Vital Statistics Law; Counties, coroners
DEBT County Board of Education prohibited from incurring indebtedness exceeding anticipated revenue for one year -------------- 42 Installment plan purchase by county prohibited ---------------------- 242
DEEDS Land processioners not sworn; filing return---------------------------- 269
DEEDS TO SECURE DEBT See Mortgages
DEFENSE See Public Defense
DELEGATION OF POWER See Constitution of State, Acts of General Assembly

'453
Page
DEPOSITORIES See Counties, Tax Collectors
DETECTIVE AGENCIES See Professions, Businesses and Trades
DIVORCE AND ALIMONY Income tax, alimony paid spouse outside State deductible ------------ 176 Residence requirements ----------------------------------- -------- 270 Support of minor child, husband not relieved by divorce -------------- 271
DOMICILE See Public Revenue; Elections
DONATIONS AND GRATUITIES See Constitution of State
"DRIVE-IT-YOURSELF" CARS See Public Revenue
DRIVERS' LICENSES See Public Revenue; Public Safety; Veterans
DRUGGISTS See Professions, Businesses and Trades
DRUGS Owner of drug store liable for violations of law in m1xmg drugs ------- .349 Wholesaler dealing in original packages not required to employ pharmacist 143
EAVESDROPPERS See Crimes and Punishment
EDUCATION Board of Regents may carry workman's compensation insurance -------- 34 Cerebral palsy, education of afflicted children ------------------------ 279 County Boards of Education: Appeal from _________________________________ _.:_ _______________,..c 36, 271
Attendance areas; assignment of pupils and buses ------------ _ 41, 272,278 Bond elections; ballots, managers ---------------------------------- 44 Consolidation of schools ------------------------------------------ 36 Contracts, limitation on power ----------------------------- ------ -42c Coroner ineligible to serve on Board ------------------------------ 274 Districts, county may not be divided -------------------------------- 41 Equalization fund, participation ----------------------------------- 42 Funds, use to pay members' private expenses ------------------------ 275 Gifts of property may be accepted by Board ------------------------ 39 Immunization of pupils -------------------------------------------- 47 Indebtedness, limitation on ----------------------------------------- 42 Lease, power of Board to ------------------------------------------ 39 Liability for injuries to pupils ------------------------------------- 275 Member may also be on Grand Jury -------------------------------- 2'74 Resignation, to whom tendered ------------------------------------ 274 School buildings, power to lease ---------------------------------- ,: 39 Site, selection of school building ---------------------------------- 36

454

Page

Tax levy, limitations --------------------------------------

42

Vacancy on Board, how filled _______ --------------------------- 38, 273

Vaccination of pupils ---------------------------------------------- 47 County School Superintendent, financial interest in sale of school buses __ 45

Drivers of school buses, compensation ------------------------------ 50, 280

Insurance of automobiles to teach safe driving ------------------------ 51

Merger of City and County School Systems ------------------------ 49, 277

"Private Schools" distinguished from "public schools" ---------------- 278

School buses, licensing ---------------------------------------------- 195

Spastic children, education of ----------------------------------------- 279

State Board of Education:

~ppeal to ----------------------------------------------------- 36,271

Employees, appointment ------------------------------------------ 302

Employees, removal --------------------------------------- 222, 284, 302

Equalization fund, participation ------------------------------------ 42

Expenses of members -------------------------------------------- 282

Funds, apportionment --------------------------------------------- 222 Tax levy, county boards required to recommend -------------------- 42

State Personnel Board, employee of State Department

of Education may appeal from dismissal ---------------------------- 302 State School Building ~uthority:

Member may also be in General ~ssembly --------------------------- 441 Recreational facilities ___ __ ____ __ ____ __ __ ____ __ ____ __ __ __ __ __ __ __ _ 440

State Superintendent of Schools:
Employees, appointment ------------------------------------------ 302 Employees, removal ---------------------------------------------- 302 Expenditures, control of allocated funds ---------------------------- 222 Resignation of county board member ------------------------------ 274 Teachers Retirement System: ~rmed forces, members serving in ------------------------------ 59,286 Benefits payable to estate of member murdered by beneficiary -------- 58
Calculation of retirement benefits ---------------------------------- 53 Disability benefits, eligibility ____ --------------------------------- 32 Eligibility for retirement ------------------------------------- __ 60 Prior service certificates ------------------------------------ _____ 56 University .System, purchase of passenger truck ---------------------- 288 University System Building ~uthority, bonds legal investments -------- 290 Workman's Compensation, Board of Regents may insure -------------- 34

ELECTIONS ~bsentee voting, primaries ------------------------------------------ 61 Assistance in preparing ballot -------------------------------------- 62 ~ugust General Election:
Biennial election required ------------------------------------------ 291 Constitution of 1945, effect --------------------------------------- 291 Registration list ------------------------------------------------- 296 Unexpired Term:
Judge of Superior Court ----------------------------------------- 295 Solicitor General ---------------------------------------------- 291 Ballot, secret vote required ------------------------------------------ 297 Constitutional amendments: Certification of ratification voting ---------------------------------- 10 Publication of proposed amendments ------------------------------ 63

455
Page
County Boards of Education, election of members -------------------- 297 Eligibility of Voters:
Conviction of crime involving moral turpitude ---------------------- 298 Registration prerequisite ------------------------------------- 299, 300 Special elections, date of qualifying ------------------------------- 300 Taxes, delinquency imposes no disability ---------------------------- 64 Freeholder may assist voter ------------------------------------------ 62 Independent candidates, procedure for qualifying -------------------- 68 Managers are secured by party holding primary ------------------------ 65 Place of voting determined by residence ------------------------------ 72 Primary, date of holding ------------------------------------- ______ 65 Recounts, primary elections ---------------------------------------- 67 Registrars, Tax Commissioner is deputy registrar ---------------------- 68 Registration: Cancellation; notice to voter -------------------------------------- 70 Date of closing registration books --------------------------------- 69 School bond elections; ballots, managers ------------------------------ 44 Special elections: Eligibility of voter; date of qualifying ---------------------------- 300 Sheriff's vacancy filled -------------------------------------------- 23
EMBALMERS See Professions, Businesses and Trades
EMBLEMS See Crimes and Punishment
EMPLOYEE'S RETIREMENT SYSTEM Public Employees Honesty Blanket Position Bond interpreted ____________ 73
EUGENICS See Social Welfare
EVIDENCE Subpoena duces tecum served on Department of Public Safety __________ 202
EXECUTIVE DEPARTMENT Governor: Eligibility of incumbent for re-election ---------------------------- 6 Jurisdiction, Governor can not cede ------------------------------- 75 Property, disposal of ------------------------------------------ 83,310 Rewards for apprehension of felons ------------------------------ __ 301 Merit System: Appeals from dismissals ------------------------------------------ 302 Dismissal, right of appeal ---------------------------------------- 302 Employment of persons over retirement age ------------------------ 76 Salary laws superseded -------------------------------------------- 304 State Banking Department, salary law superseded ------------------ 77 State Librarian, salary law superseded ------------------------------ 77 Purchases: Appropriation prerequisite --------------------------------------- 441 Defense equipment, State can not reimburse United States ---------- 305 Mileage tickets, permanent records -------------------------------- 31)9 Passenger bus for Fort Valley Gollege ---------------------------- 308 United States Treasury, payments to, for defense supplies ------------ 305

456

Page

EXEMPTIONS See Public Revenue Municipal corporations, exemptions to industries ---------------------- 114 Veterans Certificates of Exemption: Insurance agent must pay fee ------------------------------------ 229 Liquefied Petroleum Safety Act fee -------------------------------- 228 Real Estate broker's fee ------------------------------------------ 229
EXPLOSIVES Licenses for dealers ------------------------------------------------ 24
FACTORY FOR THE BLIND See Social Welfare

FEES See Specific heads

FELONIES See Crimes and Punishment

FERRIES See Roads, Bridges and Ferries

FERTILIZERS See Public Revenue

FIREWORKS Control by county authorities ---------------------------------------- 243

FISH AND FISHING See Game and Fish

FORESTRY AND GEOLOGY

Department of State Parks:

Appropriation for specific purpose, use------------------------------ 79

Contracts for development of parks ------------------------------- 81 Jekyll Island:

Duties of Parks Department ------------------------------------ 80

Lessee not indebted for supplies ---------------------------------- 314 Liability of Department:

Damages in automobile collision ---------------------------------- 31:3

Injuries to swimmer at State Park ------------,.-----------------'- 312

Roads within State Parks, construction -------------------------------

77

F. D. R. Memorial Commission, sale of property -------------------- 79

Forest products, disposal of by Governor------------------------------- 310

Georgia Forestry Commission, compensation -------------------------- 84

Governor, disposal of property ------------------------------------ 83, 310

Property, disposal of by Governor ------------------------------------ 83

State Park Authority, contract with Parks Department -------------- 437

F. D. R. MEMORIAL COMMISSION See Forestry and Geology; Warm Springs Memorial Commission

FRATERNAL EMBLEMS See Crimes and Punishment

FRATERNAL ORGANIZATIONS See Public Revenue; Insurance

457

Page

FUEL DEALERS See Public Revenue

GAMBLING See Contracts

GAME AND FISH
Arrest, Wildlife Rangers -------------------------------------------- 91 Bees, depostls of honey ------------------------------------ _______ 818 Boats, commercial fishing licenses ---------------------------------- 90 Coastal waters, jurisdiction ---------------------------------------- 87 Deposits made by wild animals ----------------------------- _____ _ 818
Fresh Water fish, sale of ------------------------------------------- 816 Hunting on posted lands -----------------------------------'----------- 88 Jurisdictional limit in coastal waters -------------------------------- 87 Lakes, private ---------------------------------------------~-------- 88 Licenses, hunting and fishing, persons under 16 ------------~--------- 317
Posted lands, hunting on -------------------------------------------- 88 Shrimp and nets, confiscation --------------------------------------- 85 Shrimp tax, search of vehicles---------------------------------------- 85 Wild Animals, deposits ---------------------------------------------- 818 Wildlife Rangers, power of arrest ----------------------- _____ _____ 91

GASOLINE See Public Revenue

GENERAL ASSEMBLY

Acts, amendment at same session ------------------------------------ 818

Delegation -of legislative authority ---------------------------------- 98

Immunity from libel suit ---------------------------------------- _____ 318

Members:

Civil Defense Advisory Council, member eligible -------------------- 287

Employment in other State job permissible -------------------------- 319

Judge Emeritus ineligible ---------------------------------------

19

Solicitor of City Court eligible-----------------------------------

16

GEOLOGY See Forestry and Geology

GEORGIA COMMISSION ON ALCOHOLISM Members, Compensation _____________________________ ------~--'----,------ 320
Members, Eligibility to serve as Executive Director --------------i-i~---- 820

GEORGIA PORTS AUTHORITY Purchase of passenger vehicle--------------------~-'---------'---------,- "822
GOVERNOR See Executive Department
GRAND JURY County Board of Education: Members may serve on grand jury ------------------------,---------- 274 Vacancies filled by grand jury appointment -------------------- 88, 273 Elections, primary, re-count ---------------------------------------- 67
GRATUITIES See Constitution of State, donations

458
Page
HIGHWAY DEPARTMENT See Roads, Bridges and Ferries
HIGHWAYS See Roads, Bridges and Ferries
HOME RULE See Municipal Corporations
HOMESTEAD See Public Revenue
HONEY Deposit of wild bees, ownership -------------------------------------- 318
HOTELS AND INNS See Public Revenue
HOUSING AUTHORITIES Appropriation, expenditure by State Board --------------------------- 100 "City," definition, as used in Act ------------------------------------- 94 :city Housing Authorities, jurisdiction -------------------------------- 95 County Housing Authorities, jurisdiction -------------------------- 95,99 Eligibility, member of County Housing Board ------------------------- 100 Financial interest -of employees prohibited ------------------------ 95, 323 Jurisdiction of City, County and Regional authorities ------------------ 95 Loyalty Oath not required ------------------------------------------- 98 Regional Housing Authorities, jurisdiction -------------------------- 95,99 State Housing Authority Board, expenditure of funds ------------------ 100 "Town," definition, as used in Act ------------------------------------ 94 Treasury Department appropriation, used by State Board---------------- 100 Withdrawal of County from Regional Authority ------------------------ 99
HUNTING See Game and Fish
HUSBAND AND WIFE Marriage, consent of parents ---------------------------------------- 323 Support of minor child: Father liable despite divorce --------------------------------------- 271 Father relieved after age 21 ---------------------------------------- 131
IMMUNIZATION OF SCHOOL CHILDREN County Board of Education can compel ------------------------------ 47
INCOME TAX See Public Revenue
INDECENT EXPOSURE See Crimes and Punishment, nudism
INFANT See Minors
INSANE PERSON See Commission of Lunacy

459

Page

INSURANCE
Agents, license fees-------------------------------------------------- 229 Board of Regents, workman's compensation -------------------------- 34 Insurance Companies:
Charters, period of duration -------------------------------------- 325 Fraternal Benefit Societies ----------------------------------------- 326 Investment certificates _______ --------------------------------------- 102 Organization meetings ----------------------------------- _______ 105 Regulation by Commissioner ------------------------------ 101, 102, 105 Securities required ------------------------ ______ --------------- 109 Underwriters ___ ---------------- ---- ---------- _____________ ------- 326 Unincorporated reciprocal insurance associations ------------------. _ 101 Jekyll Island State Park Authority, claims ---------------------------- 329 Premium tax, computation ------------------------------------------- 107 School Boards, autos to teach safe driving ----------------------------- 51 Tax, computation of premium tax ------------------------------------ 107 Trustee Savings Act of 1949 ------------------------------- ------ -- 1G2 Veterans' Certificates of Exemption, Agents fee ---------------------- 229 Workmen's Compensation, Board of Regents -------------------------- 34

INTEREST See Banks and Banking

INTERNAL REVENUE See Public Revenue

INTOXICATING LIQUORS

See Public Revenue

Female employees in liquor stores

111

INVESTMENT See Banks and Banking; Insurance

JEKYLL ISLAND STATE PARK AUTHORITY

Insurance of property and claims

329

JUDGES See Courts August General Election not apply unexpired term Judge Superior Court 295
JUNK DEALERS See Public Revenue
JURISDICTION See Specific heads Coastal jurisdiction of State three miles off shore -------------------- 87 Governor can not cede jurisdiction to United States -------------------- 75 Justice of Peace, residing outside his jurisdiction -------------------- 251 Municipal Corporation, police jurisdiction over State property ---------- 335 Ordinary, issue of writs of lunaey ------------------------------------ 252 Public Service Commission, transit fares ---------------------------- 205
JURORS See Courts; Criminal Procedure
JUSTICES OF THE PEACE See Courts

460

JUVENILE COURTS See Courts
KEROSENE See Public Revenue.
LAKES See Game and Fish

Page

LICENSES AND LICENSE TAXES See Professions, Businesses and Trades; Public Revenue; Specific heads Fishing Boats, commercial, residents -------------------------------- 90 Insurance associations ---------------------------------------------- 101 Peddling, municipal corporations ------------------------------------- 113 Vehicles, municipal corporations ------------------------------------- 123
LIENS See Mortgages; Public Revenue

LIQUOR

See Public Revenue

Females employed in liquor stores-------------------------

111

LISTS See Elections

LOANS See Counties; Municipal corporations

LOTTERIES See Crimes and Punishment

LOYALTY OATH See Housing Authorities

LUNATICS See Commission of Lunacy

MAINTENANCE TAX See Public Revenue

MAJORITY See Minors

MALT BEVERAGES See Public Revenue Female employees in Malt Beverages Store -------------------------- 111
MANAGERS See Elections

MARRIAGE See Husband and Wife
MARSHALS See Courts
MERIT SYSTEM See Executive Department

461

MILITIA See Public Defense

Page

MILITIA DISTRICTS Commission to lay out new district ---------------------------------- 252 Justice of Peace residing outside jurisdiction -------------------------- 251

MILK CONTROL BOARD Regents of University System distributors subject to control ------------ 112

MINORS See Husband and Wife; Parent and Child Age of legal majority is 21 ------------------------------------------ 136

MISDEMEANORS See Crimes and Punishment

MORAL TURPITUDE See Crimes and Punishment

MORTGAGES

Recording of liens and mortgages

113

MOTOR FUELS See Public Revenue

MOTOR VEHICLES See Public Revenue; Public Safety

MUNICIPAL CORPORATIONS Charter, termination or revocation Home Rule: Annexation of adjacent territory ---------------------------------- 334 Charter, submission of new charter -------------------------------- 335 Election, eligibility of voters ---------------------------------------- 331 Housing Authority Law of 1937 -------------------------------------- 94 Jurisdiction over State property ------------------------------------ 335 Liability for injury to public school pupil ------------------------------ 275 Motor fuel tax, municipalities not exempt -------------------- ________ 188 Motor Vehicles, additional license fee -------------------------------- 123 Newspapers, regulatory tax ----------------------------------------- 115 Officers of City:
May also hold county office ---------------------------------------- 336 May also hold County Housing Authority office ----------------~----- 100 Peddlers, recognition of county license ------------------------------ 113 Police Court, issuance of warrants------------------------------------ 123 Police jurisdiction over State property -------------------------------- 335 Recorder of Police Court may issue warrants -------------------------- 123 Revenue Anticipation Certificates ------------------------------------ 199 Tax exemption to industry ------------------------------------------- 114 Termination of corporate existence --------------------------------- 330 Transit fares, increase ---------------------------------------------- 205

NATIONAL BANKS State Branch Bank law applies ----------,---------------------------- 1

462

Page

NATIONAL GUARD See Public Defense

NATUROPATHY See Professions, Businesses and Trades

NEWSPAPERS

Municipalities can not levy regulatory tax

115

NON -RESIDENTS See specific heads
Banks, non-resident, trustees ---------------------------------------- 236 Driver's licenses ------------------------------------------------ 197,203 Motor vehicles, operation in State ------------------------------------ 197 Real estate broker or salesman's license ------------------------------ 146 Tax statutes involving non-residents ---------------------------------- 197

NUDISM See Crimes and Punishment

OCCUPATIONS See Professions, Businesses and Trades

OFFICERS See Counties; specific heads

OLD AGE ASSISTANCE See Social Welfare

OPTOMETRY See Professions, Businesses and Trades

ORDINARIES See Counties; Courts

OSTEOPATHY See Professions, Businesses and Trades

PARDONS AND PAROLES Citizenship restored by pardon -------------------------------------- 124 Concurrent paroles with other states or United States ---------------- 126 Conditional release violater, arrest and jail fees ----------------------- 127 Fees, arrest of violator of conditional release ------------------------ 127 "Good Time," none earned after parole ------------------------------ 125 Parolees remain subject to jurisdiction of Board ---------------------- 125 Revocation of release by Superior Court ------------------------------ 128 Vote, pardon restores right ---------------------------------------- _ 298
PARENT AND CHILD Support of child, father liable despite divorce -------------------------- 271 Support of child, father relieved after age 21 ------------------------ 131
PARKS See Forestry and Geology

PAROLES See Pardons and Paroles

463
Page
PEACE OFFICERS Dead 'bodies, removal before arrival of coroner ------------------------ 241 Peace Officers' Annuity and Benefit Fund: Board of Commissioners is trustee, not State agent ------------------ 133 Contributions to fund; source and computation ---------------------- 131 Wildlife Rangers are peace officers ---------------------------------- 91
PEDDLERS See Licenses and License Tax
"PEEPING TOMS" See Crimes and Punishment
PENAL INSTITUTIONS See Prisons and Prisoners
PENALTIES See Crimes and Punishment
PENSIONS Confederate widows, eligibility: Marriage date -------------- _____ -------------------------------- 135 Residence -------------------------------------------------------- 133
PERSONS Age of legal majority is 21 ------------------------------------------ 136 Residence, determination by act and intent ---------------------------- 340
PHARMACISTS See Professions, Businesses and Trades
PICKETING See Crimes and Punishment
PHYSICIANS AND SURGEONS See Professions, Businesses and Trades
PHYSIOTHERAPY See Professions, Businesses and Trades
POOL TABLES See Public Revenue
POSTING OF LANDS Hunting on posted lands a misdemeanor ------------------------------ 88 State lands, posting and registration --------------------------------- 231
PRISONS AND PRISONERS Care of prisoner, expenses ------------------------------------------ 436 Confinement under void order ------------------------------------------ 128 Escaped prisoners -------------------------------------------------- 341 Photographs of prisoner in custody ____ ------------------------------ 205 Protection of prisoner in custody ------------------------------------- 205 Release, revocation of by Court -------------------------------------- 128 Working prisoners, confined to public work -------------------------- 337
PRIVATE WAYS Closing of private road, notice to users -------------------------------- 431

464

Page

PROCESSIONERS, LAND See Deeds

PROFESSIONS, BUSINESSES AND TRADES Accountants:

Alabama, comity -------------------------------------------------- 343

Comity with Alabama --------------------------------------------- 343 Firm, principals must all be certified ------------------------------ 137 Practice of, preparation of tax returns not -------------------------- 138

Reinstatement of non-resident C. P. A. ------------------------------ 341

Residence determined ---------------------------------------- ____ 341 Signature where firm principals not certified ------------------------- 137

Tax returns, preparation not constitute practice --------------------- 138 Architects, members of examining board, eligibility ____________________ 344

Beer and Wine Stores, employment of females ------------------------ 111 Chiropractors:

Board of Examiners, appointment of members ---------------------- 346

Examination, eligibility of applicants ------------------------------- 140 Embalmers: See Undertakers, infra

Insurance Agents, fee, Veterans exemption certificate ------------------ 229

Liquor stores, employment of females -------------------------------- 111 Medicine, license to persons convicted of crime ------------------------- 345

Naturopaths, writing prescriptions unauthorized ----------------------- 141

Optometrists, examining board, meetings and records ------------------ 347

Osteopaths, death certificates ---------------------------------------- 142 Pharmacists:

Drug store owner liable for violations ------------------------------ 349 Examination, more than one taken ---------------------------------- 143 Wholesalers dealing in unbroken packages -------------------------- 143

Physiotherapists, examination and license ----------------------------- 144

Private detectives, no license tax assessed ---------------------------- 350 Real Estate Commission:

Bond required of associated brokers -------------------------------- 152

Enforcement against violators ------------------------------------ 145 Immunity not extend to swearing warrants -------------------------- 145 Licenses to brokers and salesmen:

Dealing in realty without license permitted ------------------------ 150

Examination, when none required ------------------------

148, 350

Loan, assistance in obtaining not require license ------------------ 149

Non-resident may obtain license ---------------------------------- 146

Qualification, deadline -------------------------------------- 148, 351 "Realty," use of name without license ---------------------------- 150

Retired licensee, return to business ------------------------------- 147 Showing property requires license-------------------------------- 149

Veterans certificate of exemption --------------------------------- 229 Undertakers and embalmers, special tax repealed -------------------- 352

PUBLIC DEBT See Constitution of State; Counties

PUBLIC DEFENSE Aircraft, registration of --------------------------------------------- 353 Appropriation for State Guard---------------------------------------- 153

465

Page

Civil Defense Advisory Council, members also in General Assembly

2:37

Director of Civil Defense, registration civilian aircraft ---------------- :35:3

Funds of Military Department, use ---------------------------------- 153

PUBLIC EDUCATION See Education

PUBLIC HEALTH See Vital Statistics Law Immunization of school children _______ ------------------------------- 47

PUBLIC OFFICERS See specific heads

PUBLIC POLICY

Gambling contracts

237

PUBLIC REVENUE

Ad Valorem Tax:

American Legion Clubs not exempt -------------------------------- 154 Assessments, correction of errors ---------------------------------- 154 Commissions, Tax Receivers and Collectors ------------------------- 156 Date for determining value is January 1 ---------------------------- 158

Errors in assessment, correction ----------------------------------- 154

Equalization of property ------------------------------------------ 168

Exemptions: Charitable institutions _____ - ________ -- __ -- ____ -- _________ - -- _ 154,354

Personal property in home ------------------------------- __

158

Fees, tax receivers and collectors ---------------------------------- 156

Fraternity property, exemption --------------------------------- - 354

Motor vehicles, non-resident owners -------------------------------- 159

Railroads, classification of property --------------------------------- 353

Returns by public utilities ------------------------------ _______ _ 357

Tax receivers and collectors, commissions --------------------------- 156

Utilities, returns to Revenue Commissioner -------------------------- 357

Value determined as of January 1 ---------------------------------- 158

Audit of Revenue Department, bad checks ---------------------------- 358

Bad checks, listing makers ------------------------------------------ 358

Beer, Wine and Liquor:

Agent of Revenue Department, arresting fee ------------------------- 361

Arresting fee, Revenue agent ------------------------------------- 361 Auction, re-sale at public -------------------------------- -------- _ 162 Booklets or recipe books, distribution ------------------------------ 163
Churches, sale near ------------------------------------------------ 159 Co-mingling of tax paid and unpaid liquor --------------------------- 166
Common carriers, purchase by -------------------------- ---------- 162 Confiscation of tax unpaid liquor----------------------------------- 166
Importation of beer-------------------------------------- ----- --- 360 Interstate Commerce permit---------------------------------------- 362

Licenses:

.Application fee, penalties ---------------------------------------- 164

Common carriers --------------------- _____ ---------------- 162, 362

Revocation _----------------- _____ ------------ ____ -------------- _ 160 Suspen~on ----------------------------------------------------- 160

466
Page
Local authorities, prohibition ----------------------------------- 359, 362 Penalty, failure to file application fee ------------------------------- 164 Premiums, distribution prohibited --------------------------------- 163 Prohibition left up to local authorities -------------------------- 359, 362 Purchases for re-sale ---------------------------------------------- 162 Referendum on prohibition ------------------------------------- 359, 362 Refund claims, excise tax on beer ---------------------------------- 360 Regulations, violation not amounting to crime ---------------------- 160 Re-sale, purchase for -------------------------------------------- 162 Storage space furnished by Revenue Commissioner ------------------ 165 Transportation through State, permit ------------------------------ 362 Warehouse furnished by Revenue Commission ----------------------- 165
Cigarette tax, computing basic cost ---------------------------------- 167 Constables, levy of tax fi. fas. ---------------------------------------- 863 Corporations, foreign, qualification ----------------------------------- 363 Fi. Fas., levy by constable ------------------------------------------ 363 Foreign associations and corporations, qualification -------------------- 363
Gasoline Retailers' Refunds: Application for refund -------------------------------------------- 170 Permit: Extension of effective date not binding -------------------------- 172 Name in which issued ---------------------------------------- __ 170 Wholesaler defined --------------------------------- -------------- 170
Homestead Exemption: Application, deadline ---------------------------------------------- 174 Eligibility: Occupation as dwelling ------------------------------------------ 172 Occupation every day-------------------------------------------- 173 'Ownership on January 1 ---------------------- ----------------- _174 Taxes to which applicable ----------------------------------------- 365
Income Tax:
Accrual of income ------------------------------------------------ 180 Alimony ---------------------------------------------------------- 176 Allocation of income, Three Factor Ratio ----------------------- 367, 369 Assessments, statute of limitations -------------------------------- 366 Corporation income, computation ---------------------------------- 373 Deductions, alimony -------------------------------------- ________ 176 Depletion allowance, oil ----------------------------- _________ _____ 366 Distilled spirits, sale to Georgia wholesalers -------------------- 367, 369 "Doing Business" within State ------------------------------------- 373 Exemptions, members of Armed Forces ------------------------ 176, 177 Fi. Fas., recording and levy --------------------------------------- 373 Gross income, exclusions:
Interest upon obligations of State ---------------------------- 179, 199
Pensions ------------------------------------------------------- 375 Interest upon obligations of State ----------------------------------- 179 Oil companies, depletion allowance --------------------------------- 366
Pensions --------------------------------------------------------- 375 Statute of Limitations -------------------------------------------- 366 Three Factor Ratio, allocation of income ------------------------ 367, 369
Insurance premium tax ---------------------------------------------- 107

467

Page

Intangibles Tax:

Alccounts receivable ----------------------------------------------- 185 Capital stock ----------------------- ------------------------------ 183 Contingent commissions ------------------------------------------ 185
Debenture preference stock ---------------------------------------- 183
Exemptions ------------------------------------------------------ 183 Foreign corporations, rate of tax ----------------------------------- 186 Individuals, rate of tax -------------------------------------------- 186

Insurance premiums ----------------------------------------------- 185 Loans on insurance policies ---------------------------------------- 377 National banks, rate of tax ---------------------------------------- 186

Non-profit association ------------------ -------------------------- 183 Trustees, intangibles in hands of----------------------------------- 375 Licenses and License Taxes:
See Rolling Stores; Motor Vehicle License Tax, infra

Driver's license refunds ----------------------------------------

382

"Juke boxes" ----------------------------------------------------- 381 Junk dealers ------------------------------------------------------ 187 Peddlers --------------------------------------------------------- 380 "Pin-ball" machines -------------------------------------------- _ 381

Pool tables -------------------------- ---------------------------- 381 Veterans' Certificates of Exemption:

Expiration date ------------------------------------------------- 380

''Juke boxes" --------------------------------------------------- 381 Residence restrictions ------------------------------------------- 381
Liens, tax lien law in general ---------------------------------------- 382 Motor Fuel Tax:

Highways, fuel used to construct ---------------------------------- 385 Liquid Petroleum Gases, definition --------------------------------- 187 Municipalities not exempt ------------------------------------- ---- 188

Motor Vehicle License Tax:

.Ad valorem tax liability ------------------------------------------ 196 Alrmed Forces, members of ------------------------------- -------- 387 Common carriers:

Domiciled in Georgia -------------------------------------------- 192 Non-domesticated -------------~--- _____________ ------------- 188, 191

Dealers' license plates -------------------------------------------- 385 "For Hire" tags, non-residents -------------------------------- 188, 191

Interstate commerce ---------------------------------------------- 192 List of automobile owners, publication ------------------------------ 38'

Motor numbers --------------------------------------------------- 389 Non-residents, operation within Stat-e -------------------------- 195, 197

Peace officers, defined -------------------------------------------- 389 Penalty, delinquent registration ------------------------------------ 189 Radio operators, amateurs' special tags ----------------------------- 386 Reciprocal agreements, "For Hire" tags ------------------------ 188, 191 Refunds, when allowable -------------------------------------- 190, 193 School buses ------------------------------------------------------ 195 Sheriff, delinquent registration penalty ---------------------------- 189

Municipal Corporations:

Newspaper tax --------------------------------------------------- 115 Vehicle tax -------------- ---------------------------------------- 123

468

Page

Newspaper Tax ---------------------------------------------------- 115 Non-residents, taxation of generally ---------------------------------- 197 Revenue Anticipation Certificates, taxability --------------------------- 199 Rolling Store 'Tax:

Counties may not levy -------------------------------------------- 200 Definition of "rolling store" -------------------------- ______ ______ 199
Veterans' Certificates of Exemption ---------------------------- 378, 390 Sales Tax:
Agricultural Commodities:

Filter cloths, cottonseed oil production ---------------------------- 410
Medications used in growing broilers ---------------------------- 410 Bracket System:

O.P.S. may not impose system ---------------------------------- 39}1 O.P.S. system may be followed ---------------------- ______ _____ 400
Common Carriers:

Compensation for damaged goods -------------------------------- 405 Supplies used _________ -------------~ ____ __ _________ ____________ 401

Containers, milk bottles exempt ----------------------------- ______ 410 Contracts previously executed:

Date of delivery thereunder ----------------------- --------------- 391 Date of execution thereof ------------------------------ ______ __ 391
Types of contracts exempt -------------------------------------- 392 Fabrication of goods:

Mixing concrete ----------------------------------- -------------- 418 Food:

Churches, meals served by -------------------------------------- 420

Hotels, meals sold to employees ---------------------------------- 420

Restaurants, meals sold to employees ------------------------------ 420

Sheriffs, feeding prisoners ------------------------------------

422

Fuels and Electricity: Barium carbonate, gas used to produce -------------------------- 416 Brick kilns, heating --------------------------------------------- 416 Electricity is a "good" ------------------------------------------- 411 Fullers Earth, drying ------------------------------------------- 416 Gas is a "good" ------------------------------------------------- 411 Generating plants, fuel for operating ---------------------------- 414 Manufacturing process, fuel consumed ---------------------------- 412

Tobacco curing, fuel used --------------------------------------- 411 Utilities, sale of electricity -------------------------------------- 414

Governments and governmental agencies:

American Red Cross -------------------------------------------- 4.19 Contractors as consumers ---------------------------------- 393, 394 Cost-plus contractors ----------------------------------------- _ 394 County governments, purchases --------------------------------- 406 County governments, sale of water ------------------------------ 406 Federal Reserve Banks ----------------------------------- _____ 396 Federal Savings and Loan Associations ----------------------------- 399
Georgia Ports Authority -------------------------------- ------ 409 Hospital Authorities ----------------------------------------- _ 408 Housing Authorities -------------------------------------------- 408 Municipalities:

Natural gas, sale of ------------------------------------------ 407

469
Page
Surplus property, sale of ------------------------- ____________ 407 Water meters, installation ------------------------------------- 407 National Banks ------------------------------------------------ 394 National Farm Loan Associations ---------------------- ________ 399 Officers' Clubs ------------------------------------------------- 397 Post Exchanges ------------------------------------------------- 396 Production Credit Associations ---------------------------------- 397 Rural Electric Cooperatives -------------------------------------- 408 Sheriffs, feeding prisoners --------------------------------------- 422 Sheriffs' sales ----------------------------------- -------------- 422 Governor may suspend collection of tax --------------------------- 424 Hotels and Restaurants: Furniture acquired for rooms ------------------------------------ 421 Linens, rental from service company ------------------------------ 421 Meals sold employees------------------------------------------ _ 420 Industrial materials: Fuel for heating materials --------------------------------------- 412 "Jacks" -------------------------------------------------------- 417 Knitting needles ------------------------------------------------ 417 Interstate ,Commerce: Common carriers, supplies used ---------------------------------- 401 Interstate sales ------------------------------------ _ ------------ 400 Judicial Sales _______ ------------ ______ ______ _________ _______ ____ _ 422
Railroad ties ---------------- ------------------------------------- 418 Rentals:
Leases --------------------------------------------------------- 422 Linens rented to hotels ------------------- _____ ---------------- 421 U-Drive-It Systems -------------------------------------------- 423 Services: Linen service to hotels------------------------------------------- 421 Mixing concrete ------------------------------------------------ 418 Suspension of collection of tax by Governor-------------------------- 424 Trading goods for like goods -------------------------------------- 418 Use Tax, collection by foreign vendors ------------------------------ 406 Vending machines, sales through -------------------------------- _ 421 Suspension of Collection of Taxes by Governor ------------------------ 424 Tax Collectors:
Commission ------------------------------------------------------ 425 Digests ---------------------------------------------------------- 428 Liens, release of -------------------------------------------------- 426 Release of property from liens ------------------------------------- 42o
PUBLIC ROADS See Roads, Bridges and Ferries
PUBLIC SAFETY Drivers' licenses: Non-residents driving in Georgia ---------------------------------- 203 Revocation of foreign license ------------------------------- _______ 429 Revocation of Georgia license --------------------------------------- 428 Veterans' honorary licenses --------------------------------------- 229 Evidence, surrender of documents to attorneys ------------------------ 202

470
Page
Motor Vehicle Safety Responsibility Act: Act of 1951 repealed Act of 1945 ------------------------------------ 430 Definitions ----------------------------------- -------------------- 429 Exemptions ------------------------------------------------------ 430
Ordinary, jurisdiction of drunkenness cases ---------------------------- 204 Photographs of prisoners in custody ---------------------------------- 205 Prisoners in custody, protection of ----------------------------------- 205 Subpoena duces tecum served Department ---------------------------- 202
PUBLIC SCHOOLS See Education
PUBLIC SERVICE COMMISSION Railroad tracks, relocation of ---------------------------------------- 206 Transit fares, jurisdiction over increase ------------------------------ 205
PUBLIC WELFARE See Social Welfare
PUNISHMENT See Crimes and Punishment
PURCHASES Appropriation prerequisite to purchase ------------------------------- 441 Defense equipment, payment to United States ------------------------ 305 Fort Valley State College, passenger bus ---------------------------- 308 Georgia Ports Authority, passenger automobile ----------------------- 322 Mileage tickets, permanent record------------------------------------- 309 Reimbursement of Federal Government ---------------------------- _ 305 University System, passenger truck ---------------------------------- 288 Warm Springs Memorial Commission, budget ------------------------ 442
RAILROADS Relocation of tracks ------------------------------------------------ 206
REAL ESTATE BROKERS AND SALESMEN See Professions, Businesses and Trades
RECORDING See Mortgages
REGENTS OF UNIVERSITY SYSTEM See Education
REGISTRA:TION See Elections
RESIDENCE See Persons
REVENUE See Public Revenue
ROADS, BRIDGES AND FERRIES Bridges, excessive weights ------------------------------------------ 431 Closing private roads -------------------------------------- -------- 431 Federal Roads Administration, refusal to participate ----------------- 207 Private roads, closing ---------------------------------------------- 431

471
Page
Reimbursement of utilities, Atlanta Expressway ---------------------- 211 State Highway Department:
Atlanta Expressway, relocation of facilities -------------------------- 211 Condemnation to build sidewalks, curbs, gutters -------------------- 432 Contracts, liability upon failure of Federal aid ---------------------- 207 Eminent domain, sidewalks, curbs, gutters -------------------------- 432 Parks, maintenance of roads within State parks -------------------- 77 Treasurer of Highway Board also Judge of City Court -------------- 210
ROLLING STORES See Public Revenue
SALES AND USE TAX See Public Revenue
SCHOOLS See Education
SCHOOL BUILDING AUTHORITY See Education
SCHOOL TEACHERS See Education
SECRETARY OF STATE See Corporations
SECURITY DEEDS See Mortgages
SHERIFFS Courts-martial, warrants, execution ---------------------------------- 31 Fees -------------------------------------------------------- 25,243,254 Vacancy filled by Ordinary ------------------------------------------ 23 Warrants issued by Courts-martial ---------------------------------- 31
SHRIMP See Game and Fish
SOCIAL WELFARE Blind, Georgia Factory for the---------------------------------------- 433 Contracts for construction work ------------------------- ____________ 221 Eugenics, State Board of -------------------------------------------- 220 Funds, priority of welfare over other ---------------------- ____________ 227 Lists of recipients kept secret ---------------------------------------- 435 Old Age Assistance: Appeal from county board------------------------------------------- 435 Claims against recipient's estate ---------------------------------- 434 Rolls, welfare rolls not public ---------------------------------------- 435 ,Sterilization of inmates --------------------------------------------- 220
SOLICITOR-GENERAL City Court: Solicitor may also be member General Assembly -------------------- 16 Superior Court: Election, unexpired term ------------------------------------------ 291

472

Page

Expenses, certification to State ------------------------------------- 255 Fees ----------------------------------- ------------------------- 27 SPASTIC CHILDREN Education of ------------------------------------------------------- _ 279
STATE AUDITOR Funds of Department of Education ---------------------------------- 222
STATE DEPARTMENT OF PUBLIC WELFARE See Social Welfare
STATE. HIGHWAY DEPARTMENT See Roads, Bridges and Ferries

STATE LIBRARIAN Merit System, salary ------------------------------------------------- 77

STATE TREASURER

Priority of educational and welfare funds

227

STATISTICS See Vital Statistics Law
STERILIZATION See Social Welfare
STOCK See Corporations
STONE MOUNTAIN PARK State Park Authority, contract with Parks Department ---------------- 437
SUBPOENA DUCES TECUM See Public Safety
SUPERINTENDENT OF SCHOOLS See Education
SUPERIOR COURTS See Courts

SUPPORT See Parent and Child

TAX ASSESSORS See Counties

TAX COLLECTORS See Counties

TAXES AND TAXATION See Public Revenue

TEACHERS RETIREMENT See Education

TIME See Boundaries, Jurisdiction and Time of State

473

Pa,qe

TRAFFIC CASES See Courts, ordinaries

TREASURE TROVE No permit required to dig for---------------------------------------- 339
TRUCKS See Public Revenue

TRUSTEES Banks, non-resident, can not act as trustees -------------------------- 236 Peace Officers Annuity and Benefit Fund ---------------------------- 133 Trustee Savings Act of 1949 ---------------------------------------- 102
UNDERTAKERS See Professions, Businesses and Trades

UNIVERSITY SYSTEM See Education

VACCINATION See Education

VETERANS Certificates of Exemption:
Insurance Agent -------------------------------------------------- 229 Liquefied Petroleum Safety Act ------------------- _____ ------------ 228
Real Estate Broker ------------------------------------------------ 229 Driver's License _____ ---------------------------------- __ ----------- 229 State Board of Veterans Service, meetings ---------------------------- 230

VITAL STATISTICS LAW Birth certificates, time of filing -------------------------------------- 230 Coroners, duties under 1945 Act-------------------------------------- 240 Death certificates ---------------------------------------------- 142,240

WARM SPRINGS MEMORIAL COMMISSION

Posting of land

231

Purchases:

Appropriation prerequisite ---------------------------------------- 441

Budgetary requirements ------------------------------------------ 442

WARRANTS Courts-martial, execution by sheriff ---------------------------------- 31 Officers authorized to issue and serve ------------------------------ 268 Real Estate Commission, no immunity -------------------------------- 145 Recorder of Police Court, jurisdiction -------------------------------- 123

WELFARE See Social Welfare

WHISKEY See Public Revenue Females employed in liquor stores ------------------------------------ 111
WIFE See Husband and Wife

474
Page
WILDLIFE RANGERS See Game and Fish
WINE See Public Revenue Females employed in ~ne stores ------------------------------------ 111
WITNESSES See Courts
WORKMEN'S COMPENSATION See Insurance