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

53
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

54
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 contributio