Opinions of the Attorney General 1952-1953

OPINIONS
of
THE ATTORNEY GENERAL
1952-1953
EUGENE COOl(
Attorney General
W. DAN GREER LAMAR W. SIZEMORE
and E. FREEMAN LEVERETT
Compilers
Printed by
FRANKLIN ATLANTA

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 1952-1953.
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,
~r~~
EUGENE COOK The Attorney General
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DEDICATION There is a certain august dignity which pervades the spirit of the bicentennial year of any endeavor. Perhaps it arises from the satisfaction that long existence bespeaks its own justification. Perhaps its aegis lies in aesthetic contemplation of tradition alone- exultation of those somber brows who have gone before but
"Whose distant footsteps echo through the corridors of time . . . " It is with these thoughts and many more that we respectfully and solemnly dedicate this volume to the remembrance of William Clifton, Esquire, the first Attorney General of Georgia, appointed August 6, 1754.
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ATTORNEYS GENERAL HENRY P. FARRER ____________________________________________________________1868-1872 N. J. HAMM0 ND----------------------------------------------------- _________________1872-1877 R 0 BERT N. ELY___:_____ ------------------------------------------------------------ __1877-1880 CLIFFORD L. ANDERSON-------------------------------- ___________________1880-1890 GE 0 RGE N. LESTER______________________ ----------------------------------------1890-1891 W. A. LITTLE__________________________________________________________________________1891-1892 J. M. TE RRELL__________________________________________________________________________1892-1902 B0 YKIN WRIGHT __________________________________________________________________1902-1902 J 0 HN C. HART-------------------------------------------------- _____________________ _1902-191 0 HEWLETT A. HALL ---------------------------- __________________________________1910-1911 TH0 S. S. FELDER ___________________________________________________________________1911-1914 WARREN GRICE _______________________________ --------------------------- _______ 1914-1915 CLIFFORD WALKER __ ----------------------------------- _____________________1915-1920 R. A. DENNY____ --------------------------------- ______ ___________________ ________ _1920-1921 GEORGE M. NAPIER_____________ _____________ _______________________ ____ ___ 1921-1932 LAWRENCE S. CAMP--------------------------------- ____________________________1932-1932 M. J. YEOMANS ________________________________________ -------------------- ____1933-1939 ELLIS G. ARNALL __________________________________________________________________1939-1943 GRADY HEAD __________________________ ------------------------------------------ _____1943-1945 EUGENE C00K _____ -----------------------------------------------------------------1945-
y

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 intheir official capacities until such time as those opinions are modified or set aside 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 829 opinions given by the Attorney General in 1952-53 have been reviewed and edited, and some 619 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.
~r~~
THE ATTORNEY GENERAL
VI

EUGENE COOK Attorney General
President, National Association of Attorneys General-1954 (Georgia's first Attorney General to be President NAAG)
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TABLE OF CONTENTS
Part I. Report of the State Department of Law for 1952-1953 ----------------------------------------------------------------- XI
Part II. Opinions of the Attorney General, 1952_____________________ I Part III. Opinions of the Attorney General, 1953________________________ 273 Part IV. Index to Opinions__________________________________________________________ . 525
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PART I Report of the Operations of The State Department of Law for
1952- 1953
XI

INDEX TO PART I
Page Register of the Department of Law, 1952-1953_____________________ XV
History, Duties and Powers of the Attorney General and the Department of Law______________________________________________________ _ XVII
Important Cases Handled 1952-1953 ____________ -----~--~ XXII
A. Extradition and Criminal Matters 1. Extradition____________________--------------------------___________________ XXII 2. Criminal Cases in United States Supreme Court__ XXII 3. Criminal Cases in the Supreme Court of Georgia__ XXIII 4. Juvenile Court Cases_______________________________________________ XXIII
B. County Unit Cases____________________________________________________________ XXIV
C. Segregation Cases____________________________________ ------------------------- XXIV
D. Revenue Cases-------------------------------------------------------------------- XXV 1. Sales Tax_____________________________________________________________________ XXV 2. Income Taxes____________ -------------------------------------------------- XXVI 3. Ad Valorem Tax_________________________________________________________ XXVII 4. Garnishments_______________________________________________________________ XXVII
E. Administrative Law___________ --------------------------------------------- XXVIII 1. State Building Authorities______________________________________ XXVIII 2. Anti-Trust Litigation_________________________________________________ XXVIII Against the Commissioner of Insurance
Table of Appellate Court Cases, 1952-1953_________________________ ______ XXIX
Summary of Litigation, Opinions and Legislation Drafted During 1952-1953____________________--------------------------------------------___ XXXII
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REGISTER OF THE DEPARTMENT OF LAW
1952- 1953
THE ATTORNEY GENERAL Eugene Cook
ASSISTANT ATTORNEYS GENERAL Adams, C. Winton Addleton, Robert L. *Blackshear, M. H., Jr. *Boney, Fleeman H. Bruce, Charles H. *Carney, Hugh C. *Gambrell, Robert H. Hall, Robert H. Hartley, A. J. Houston, John C. Knox, James C. Parham, J. R. *Rice, W. Vaughn *Simmons, H. Grady *Sims, George E., Jr. Sizemore, Lamar W. Stephens, Hamilton B. *Williams, T. V., Sr.
DEPUTY DIRECTOR OF BILL DRAFTING UNIT Edwards, Frank H.
LAW CLERKS *Allen, T. Charles *Forehand, Oliver C. Goddard, John H. *Goodwin, Bland, Jr. Greer, W. Dan Harris, Robert B. *Head, James W. *Hedrick, Robert D. Jackson, Rubye G. Leverett, E. Freeman *Minchew, Delman L. *Rowland, Joe Wilcox, John W., Jr. Zellars, Broadus B.
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SECRETARIES Balkcom, Betty B. Birrell, Margaret Y. Briggs, Helen B. Brooks, Nelle C. *Clements, Dorothy C. Gibson, Elizabeth Giles, Mary W. Monroe, Rilla H. *McKibben, Josephine M. *Nelson, Ann Raven, Dorothy G. Reynolds, Hallie P. *Saffold, Mildred
OTHER PERSONNEL Cook, Julia, Clerk-Receptionist Dyer, Alice, Receptionist McDuffie, Sue S., Bookkeeper Stephenson, Floy C., Treasurer-Purchasing Agent *Indicates personnel no longer affiliated.
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HISTORY, DUTIES AND POWERS OF THE ATTORNEY
GENERAL AND THE DEPARTMENT OF LAW
Since early in the colonial history of Georgia we have had an Attorney General. During the government of the Colony by the Trustees local courts were called lawyerless courts-there were no practitioners in Georgia-and the courts were not authorized to admit persons to the bar. Some thought how happy they should feel of being "free from that pest and scourge of mankind called 'lawyers.' The Salzburgers from the swamps of Effingham rejoiced at the fact that they had 'neither lawyers, courts nor rum.' "
While the Trustees permitted no lawyer to practice in Georgia, they themselves had to secure counsel to represent them in England. Sir Joseph Jekyll, Master of the Rolls, and friend of Oglethorpe, represented the Colony on occasion, and contributed 500 pounds to the Trust. In recognition of that fact, Jekyll Island was named in his honor. Another attorney employed in England was William Murray, afterwards the famed Lord Mansfield.
Eventually, England changed the Colonial method of government and a governor was appointed for the Province of Georgia. One of the powers granted to the governor was to constitute courts and define their powers. At this time, the King appointed William Clifton, Esquire, a distinguished English lawyer, to be Attorney General of Georgia. He reached Savannah in 1754 and was immediately asked to prepare a plan for constituting courts. On December 12, 1754, he presented a report which was adopted and is the germ of our judicial system. It provided for the erection of a "General Court with like power and authority as is used and exercised by the respective Courts of King's Bench, Common Pleas and Exchequer in England" and for a separate Court of Chancery to be held before the Governor and Council for determining all matters of equity.
Thus it is seen that the first lawyer authorized to practice in Georgia was its own first Attorney General.
Clifton had a short leave of absence in 1758, during which time Thomas Burrington, Esquire, acted as Attorney General Pro Tern. On returning to Georgia, Clifton resumed his duties, and evidently gave great satisfaction, for in 1764 when he was appointed Chief Justice of Florida, then in control of the British, the Common House of Assembly of the Province of Georgia resolved, "That the thanks of this House be given to the Honorable William Clifton, Esquire, late
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Attorney General of this Province and now Chief Justice of West Florida, for his upright conduct in this office as well as in all other public employment and that the Speaker so signify the same to him by a letter."
The resolution makes us feel that we have reason to be proud of the first lawyer on our long and lengthening Court Roll.
The Judiciary Act of 1797 provided for an Attorney General and two Solicitors General. They were simply prosecuting officers. The Attorney General at that time had no duties to perform in c.onnection with the operations of the State Government except those of prosecuting criminals.
For the first time the Constitution of 1868 made the Attorney General a constitutional officer. He then became Attorney General in fact and the legal adviser of the Governor and other departments of the State Government. We have since had an Attorney General who is a constitutional officer and whose duties are defined by the Constitution and laws of the State.
The growth of the State agriculturally, industrially and financially since that time has required that the officers of the State be well informed in matters of law in order to decide with wisdom 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
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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 counseiing 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, regarding 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 performs 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 with the Department will be treated separately.
The 1953 sessions of the General Assembly added to the Attorney General's duties two new important duties. One was the enforcement provision of the Fair Trade Law and the other was the requirement that the Attorney General be made a party in all litigation involving charitable trusts.
DRAFTING OF LEGISLATION
The State Law Department has always, to a certain extent, drafted legislation for the members of the General Assembly. This
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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 me~bers 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 call 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 basis rather than only during a Session of the General Assembly. Of 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.
LITIGATION
As stated above, a portion of the Department's personnel was 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
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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 to closely supervise the 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 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.
As examples of the activity of the Attorney General and the Department of Law in the field of court room work, during the years
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of 1952 and 1953, 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.
IMPORTANT CASES HANDLED IN 1952-53
A. EXTRADITION AND CRIMINAL MATTERS.
I. EXTRADITION:
For four years the Attorney General has, in the field of extradition, sought to establish in the bodyof federal law the basic proposition that all fugitives, before being entitled to writs of habeas corpus in forums outside Georgia, must first exhaust the State remedies of Georgia, the demanding State. After long and involved trials in more than a dozen states and in almost half a dozen federal circuit Courts of Appeals, finally a case reached the Supreme Court of the United States upon a petition for a writ of certiorari bringing in issue this exact proposition. This case came to the attention of the Department when by chance it was seen listed in Law Week's review of the week's analysis of cases pending. It involved .a sister State, but the principle was the same which for four years Georgia had been raising in various circuits resulting in conflicting opinions. As a result of the legal staff's working all night, a brief as amicus curiae was filed in the Supreme Court, urging the grant of certiorari.
On November 17, 1952, in the case of Sweeney v. Woodall, 344 U. S. 86, the Supreme Court of the United States granted certiorari, and summarily reversed the decision below. The Court held that fugitives should be required to initiate their suits in the courts of the demanding state when raising constitutional questions concerning their sentence and confinement in that state. This victory has reduced to almost nil the number of habeas corpus cases filed in asylum states, and has saved the State of Georgia several thousands of dollars in needless litigation and expense in returning prisoners who have escaped our penal institutions or fled from justice prior to trial.
2. CRIMINAL CASES IN UNITED STATES SUPREME COURT:
During the two year period covered by this volume, five criminal cases have been disposed of in the United States Supreme Court, four of them upholding the sentence and the Supreme Court of Georgia's affirmance thereof. The two principal cases are Stembridge v. Georgia, 343 U. S. 541, in which the Supreme Court of the United States dismissed a writ of certiorari previously granted, for the reason that
XXII

it had been improvidently granted, the court holding that the federal question had not been decided by the highest court of this State upon a federal question, and that federal constitutional questions must be raised in accordance with State court procedure. The other case, Avery v. Georgia, 345 U. S. 559, held that the use of separately colored tickets used in drawing jurors from the jury box constituted prima facie evidence of discrimination.
3. CRIMINAL CASES IN THE SUPREME COURT OF GEORGIA:
Some 58 cases were briefed and represented by the Attorney General in tbe Supreme Court of Georgia. In 49 of these cases the judgment of the trial court was upheld. The Attorney General is required by the Constitution to represent the State in all capital felony cases in the Supreme Court of Georgia.
4. JUVENILE COURT CASES:
Two questions involving the Juvenile Court Act of 1951 were before the Supreme Court of Georgia during this period. In Hampton v. Stevenson (210 Ga. 87), a minor had been committed to the Georgia Training School by the Juvenile Court of Bibb County on a finding that she had violated a State law by stabbing another. The minor sought release by a writ of habeas corpus on the ground that the Juvenile Court Act of 1951 was unconstitutional in that the Georgia Constitution (2-3901) gives the Superior Court exclusive jurisdiction over felonies and that the act denied her the constitutional right (2-105) to trial by jury. The Supreme Court affirmed the dismissal of the writ by holding that proceedings under the Juvenile Court are civil, not criminal, and that therefore, the constitutional provisions as to the Superior Court's exclusive jurisdiction over felonies and the right to trial by jury have no application to a proceeding under the Juvenile Court Act.
In Jackson v. Balkcom (210 Ga. 412) and Miller v. Balkcom (210 Ga. 415), two minors under the age of seventeen were convicted and sentenced to death by electrocution for the crime of rape before the Superior Court of Baldwin County. Both minors sought release by writ of habea~ corpus on the ground that the Superior Court had no jurisdiction over them in that the Juvenile Court Act of 1951 gave the Juvenile Court exclusive jurisdiction over minors under the age of seventeen who violate any law of the State. The Supreme Court affirmed the dismissal of both writs by holding that while there is language in Sections 9, 10, 11 and 19 of the Juvenile Court Act of 1951 which might indicate that it was the intention of the General Assembly to give original jurisdiction to the Juvenile Courts
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in all cases pertaining to criminal charges against persons less than seventeen years of age, there is nothing in the Act which would have the effect of repealing Code 26-301, which states the age of criminal responsibility to be "14 years, or before that age if such person know the distinction between good and evil." Jurisdiction to try persons charged with felonies, who are accountable under the law, is fixed by the Constitution in the Superior Courts (2-3901).
The Jackson and Miller cases would indicate that the decision as to whether a child (criminally responsible under Ga. Code Ann., 26-301) will go before the Superior Court and be charged with a crime or go before the Juvenile Court to be given care and discipline in a training school, lies with the prosecuting attorney. If he makes no move toward indicting the child, the case will fall under the jurisdiction of the Juvenile Court.
B. COUNTY UNIT CASES.
While the county unit case of Cox v. Peters, 342 U. S. 936, was commenced during the period covered by the last report of the Attorney General, it was not finally concluded until the period covered by this volume. On March 3, 1952, the Supreme Court of the United States dismissed the appeal taken from the Supreme Court of Georgia for want of a substantial federal question, thus putting to rest the constitutionality of Georgia's County Unit System in primary elections, it being held by the Supreme Court of Georgia (208 Ga. 498) 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 of the Federal Constitution.
C. SEGREGATION CASES.
The segregation laws of Georgia have not been directly drawn in question in any case carried to the appellate courts during the period covered by this report. However, the Attorney General has been in constant consultation with the Attorneys General of other States having cases now pending in the United States Supreme Court, and has been in attendance upon the arguments made in that court.
However, the segregation laws of Georgia were directly challenged in the United States District Court for the Northern District of Georgia in the case of Ward v. Regents of the University System of Georgia, et al. This was a class action instituted by petitioner, a negro, against university authorities seeking an injunction to compel his admission to the University of Georgia Law School. Defensive
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pleadings, motions and briefs were filed by the Attorney General and a number of preliminary hearings and conferences were conducted in preparation for the trial of the case. The matter was rendered moot for the time being, however, by the announcement of counsel for petitioner in open court on the call of the case, that petitioner had been inducted into the armed service of the United States. A motion by plaintiff's counsel, therefore, was granted by the court continuing the case indefinitely for reassignment at a later date. As pointed out in the opinions of the Attorney General for 1950-51, similar suits previously instituted in the United States District Courts for the Middle and Southern Districts of Georgia were dismissed on motion of the Attorney General for procedural defects.
D. REVENUE CASES.
1. SALES TAX:
Beginning with the case of Craig-Tourial Leather Co., Inc. v. Reynolds, 87 Ga. App. 360, in which the Attorney General appeared as amicus curiae, the Court of Appeals first construed the provisions of the Georgia Retailers' and Consumers' Sales and Use Tax Act. The facts in this case indicated that Craig-Tourial Leather Company, a wholesaler of shoe repair supplies, sued Reynolds, a shoe repairman, for 3% of the amount of the sales price of supplies furnished to him, for sales tax. The Court, in construing the Sales and Use Tax Act, said that the sale to Reynolds by the wholesaler was a retail sale and subject to 3% tax.
The questions of exemption under the Sales Tax Act have been decided by the appellate courts twice since the effective date of the Sales Tax Act. In the case of Cherokee Brick & Tile Co. v. Redwine, 209 Ga. 691, the Brick Company relied on the provision of the act exempting sales of goods made pursuant to bona fide written contracts entered into prior to the approval date of the act. The Supreme Court, in disaUowing this exemption, declared that sales under a bona fide written contract entered into before the effective date of the act were not exempt unless delivery of the goods sold was made within ninety days of the approval date of the act. Further, the Court said that the Sales Tax Act, when it applied to sales made under contracts entered into prior to the effective date of the act, did not violate the constitutional provisions relative to impairing the obligations of contracts.
The Cherokee Brick & Tile Company further relied on an exemption in a claim for refund for sales tax paid in the case of Cherokee Brick & Tile Co. v. Georgia, 89 Ga. App. 235 (cert. den., Supreme Court of Georgia, Jan. 13, 1954). The Brick Company here con-
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tended that gas used by it in its brick kilns to heat the raw clay and clay products in the manufacture of its bricks was exempt under the industrial materials section of the Sales Tax Act, which provi(ied that material used directly in fabricating, converting or processing of component parts of the finished product were not subject to the sales tax. Here the Court of Appeals determined that the gas used in the manner alleged by the Brick Company was not used directly in the fabricating, converting and processing of its finished products and was therefore not subject to this exemption under the industrial materials section. In both Cherokee cases the Courts again announced the statutory construction rule that exemptions from tax are to be strictly construed in favor of the taxing authority.
The City of Marietta Hospital Authority, d/b/a Kennestone Hospital, also sought exemption from the Sales Tax Act under the provisions that all sales to a State, county or municipality were exempt from the act. In the case of City of Marietta Hospital Authority v. Redwine, 87 Ga. App. 629, the Court held that although this hospital might be a political subdivision or instrumentality of Government, it was not specifically entitled under the provisions of the act to an exemption of its purchases under the Sales Tax Act. The Court here looked to the intention of the Legislature which was exemplified in the Journal of the House of Representatives which showed that the House twice rejected a provision exempting hospital authorities.
2. INCOME TAXES:
The question of "doing business" in Georgia for the purpose of Georgia Income Tax statutes was again raised in the case of Redwine U. S. Tobacco Company, 209 Ga. 725. The Court held under the facts of this case that under the decision of Suttles v. Owens, 206 Ga. 849, and Redwine v. Dan River Mills, Im~., 207 Ga. 381, the U. S. Tobacco Company was not doing business so as to be liable to pay Georgia income tax. The facts in this case differed from those in the case of Redwine v. Dan River Mills, Inc., in that the tobacco company had salesmen located in Georgia who carried on sales promotions plus making actual sales of the tobacco company's products to dealers in this State. The Court said, however, that such sales were not for profit and thereby the tobacco company was not doing business in Georgia, and thereby was not liable for income taxes. The Attorney General in both the case of Redwine v. Dan River Mills, Inc. and in the case of Redwine v. U. S. Tobacco Co., and especially in the latter case has unsuccessfully pointed out that the mere fact that a profit is not made directly from the business so conducted does not amount to not doing business within the State.
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3. AD VALOREM PROPERTY TAX.
In the case of Goodwin, Tax Collector, v. The Citizens and Southern National Bank, 209 Ga. 908, the Supreme Court had before it the question of whether the taxes imposed upon branch banks of a national bank were constitutionally imposed. The question was resolved when the Court said that the statute imposing the tax was made upon the branch bank itself and was not to be interpreted as a tax upon the capital stock of the branch bank which the Court admitted was the intention of the legislature. It was construed that this was a tax on the branch bank itself and since Congress has only provided four methods in which national banks may be taxed, a statute imposing a tax in this manner does not come within the methods prescribed by Congress and is, therefore, in violation of Federal law.
In the case of Redwine v. Georgia Railroad & Banl,;ing Company, 344 U. S. 925, the Supreme Court of the United States in a per curiam order affirmed the judgment below, which held that the tax rate specified in the charter of the railroad, which 'was granted by the General Assembly in 1833, was a contract by the State with that company, and that an effort to collect ad valorem taxes in excess of that rate was unconstitutional impairment of a contract inhibited by the Constitution. The State's position has been that the General Assembly of 1833 did not have the power to so contract, and further that the Constitution of 1945 removed the charter immunity from taxation. This apparently brings to a conclusion the Georgia Railroad litigation on this subject, which has been in the courts for the last several years.
4. GARNISHMENTS:
In the case of Redwine, Commissioner v. Morgan, 88 Ga. App. 625, it was decided that unless the State or a State official consented to a judgment in answer to a garnishment proceeding, no judgment against the State would be valid. Here a garnishment was issued out against the State Revenue Commissioner, the defendant in garnishment being an employee of the State Revenue Commissioner. The Revenue Commissioner answered the summons of garnishment, stating that he did not assent to the garnishment. The Court held that where the answer of the garnishee, when it is the State or a State official, did not show consent to the judgment, no valid judgment could be rendered.
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E. ADMINISTRATIVE LAW.
I. STATE BUILDING AUTHORITIES:
During the period covered by this report the Legislature created two Building Authorities, one for schools and one for roads, involving capital improvements in excess of a quarter of a billion dollars. These Authorities were created as public corporations, but not as instrumentalities of the State within the meaning of the constitutional inhibitions against state debts. The Attorney General represented the interests of the State Board of Education and the State Highway Department in the bond validation of these two Authorities which were subjected to constitutional attacks upon the legislation pursuant to which the bonds were to be issued. In Sheffield v. State School Building Authority, 208 Ga. 575, the State School Building Authority and the bonds issued by it were found not to be the obligations of the State and to be in all respects legally valid.
With respect to the State Bridge Building Authority, the Supreme Court in McLucas v. State Bridge Building Authority, 210 Ga. 1, relying on the Sheffield case, came to the same conclusion.
2. ANTI-TRUST LITIGATION AGAINST THE COMMISSIONER OF INSURANCE:
An important decision to all administrative officials was rendered by the United States Supreme Court in the case of Bankers Life and Casualty Company v. Holland, 346 U. S. 379, which held in effect that under the anti-trust laws the venue of suits must be in the district where the defendant resides, is found, or has an agent. This suit arose when the Commissioner of Insurance was served with process in the Northern District of Florida while attending a meeting of Insurance Commissioners. The suit was brought in the Southern District of Florida and the Insurance Commissioner of Georgia was sought to be required to defend the action in that forum. The District Court, on motion timely made, transferred the suit to the Northern District of Georgia. The Fifth Circuit Court of Appeals in the case In Re Bankers Life and Casualty Company, 199 F. 2d 593, refused to mandamus the District Judge to modify his order dismissing the Georgia Insurance Commissioner. This was ultimately taken to the Supreme Court in the case above cited and decided in favor of the Insurance Commissioner of Georgia.
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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:
Avery v. Georgia....-------------------------------------------------------------------------------------- 345 U.S. 559
345 u.s. 903
Bankers Life & Casualty Co. v. Holland------------------------------------------------ 345 U.S. 933
346 u.s. 379
Callahan v. Georgia---------------------------------------------------------------------------------- 344 U.S. 868 Carson v. Carbide and Carbon Chemicals Corp.____________________________________ 342 U.S. 232
342 u.s. 847
Carson v. Roan-Anderson Co.____________________________________________________________________ 342 U.S. 232
342 u.s. 847
Cox v. Peters------------------------------------------------------------------------------------------------ 342 U.S. 936
343 u.s. 921
Georgia Railroad & Banking Co. v. Redwine________________________________________ 342 U.S. 299
342 u.s. 863
Hodges v. Georgia_________________________________________________________________________________________ 344 U.S. 903
Redwine v. Georgia Railroad & Banking Co--------------------------------------- 344 U.S. 925 Robinson v. Georgia---------------------------------------------------------------------------------- 345 U.S. 999
Stembridge v. Georgia....----------------------------------------------------------------------------- 342 U.S. 940
343 u.s. 541
Sweeney v. WoodalL.---------------------------------------------------------------------------------- 344 U.S. 86
344 u.s. 916
COURTS OF APPEALS OF THE UNITED STATES:
In re Bankers Life & Casualty Co------------------------------------------------- 199 F. 2d 593
Porch v. Cagle....------------------------------------------------------------------------- 199 F. 2d 865
II. GEORGIA STATE COURTS
SUPREME COURT OF GEORGIA
Almond v. State....--------------------------------------------------------------------------------------- 208 Ga. 673 Avery v. State________________________________________________________________ ------------------------ 209 Ga. 116
209 Ga. 881 Baggett v. Linder----------------------------~---------------------------------------------------------- 208 Ga. 590 Bailey v. State--------------------------------------------------------------------- 210 Ga. 52 Baker, et al v. Henderson.__________________________________________________ 208 Ga. 698 Bankers Life & Casualty v. Cravey_________________________________________ 208 Ga. 682
209 Ga. 274 210 Ga. 239
XXIX

Beazley v. DeKalb County____________________________________________________________________________ 210 Ga. 41 Blackston v. State_________________________________________________________________________________________ 209 Ga. 160
Bland v. State____________________________ ------------------------------------------------------------------- 210 Ga. 100 Booker v. State________________________________________________________________________________________________ 210 Ga. 34 Bowen; alias Adkins, v. State __________________________________________________________________ 209 Ga. 524
Burgess v. State---------------------------------------------------------------------------------------------- 210 Ga. 91

Cable v. State Highway Board of Georgia___________________________________________ 208 Ga. 593 Calhoun v. State______________________________________________ ------------------------------------------------ 210 Ga. 180 Callahan v. State _________________________________________________________________________________________ 209 Ga. 211 Chappell v. State ____________________________________________________________________________________________ 209 Ga. 701
Cherokee Brick & Tile Co. v. Redwine __________________ -------------------------------- 209 Ga. 691 Conley Housing Corp. v. Coleman_____________________________ -------------- ------------------- 210 Ga. 219 Cravey v. Bankers Life & Casualty Co._____________________________________________ --- 209 Ga. 273

Darden v. State______________________________________________________________________________________________ 208 Ga. 599 Davidson v. State__________________________________________________________________________________________ 208 Ga. 834
Delinski v. Dunn__________________________________________________ ---------------------------------------- 209 Ga. 402 Denson v. State________________________________________________ ------------------------------------------- 209 Ga. 355 Downs v. State_________________________________________ _____ -------------------------------- ___________ 208 Ga. 619

Goodwin v. The Citizens & Southern National Bank_________________________ 209 Ga. 908

Griffin v. State -------------------------- -------------------------------- ----------------------------- ---- 208 Ga. 746

Gray v. Georgia Real Estate Commission_______________________________

_____ 209 Ga. 301

Haire v. State_____________________________________________ -----------------------------

__ 209 Ga. 378

Hampton v. Stevenson______________________

------------------------------------------------- 210 Ga. 87

Hardy v. State______________________________________________________________________________________________ 209 Ga. 361

Heard v. State______________________ --------------------------------------------------------------------- 210 Ga. 108 Jtenderson v. State_______________________________________________________________________________________ 209 Ga. 72 Henderson v. State______________________________________________________________________________________ 209 Ga. 238

Jtodges v. Balkcom_______________ ---------------------- --------------------------------------------------- 209 Ga. 856 Hulsey v. State -------------------------------------------------- ---------------------------------------- 209 Ga. 61

Irwin v. State________________________________________________________________________________________________ 209 Ga. 17

Johnson v. State-------------------------------------------------------------------------------------------- 209 Ga. 333 Jones v. Balkcom____________________________________________________________________________________________ 210 Ga. 262 Jones v. State----------------------------------------------------------------------------------------------- 209 Ga. 685 Jones v. State__________________________________________________________________________________________________ 210 Ga. 94
Kelley v. State_________________________________ ------------------------------------------------------------- 210 Ga. 118 King v. State__________________________________________________________________________________________________ 210 Ga. 92 Kitchens v. State____________________________________________________________________________________________ 209 Ga. 913
Linder v. Ponder--------------------------------------------------------------------------------------------- 209 Ga. 746
Miller v. Turner, et al--------------------------------------------------------------------------------- 209 Ga. 255 Moore v. Baldwin County_______________________________________________________________________________ 209 Ga. 541 Moore v. State_________________________________________________________________________________________________ 208 Ga. 623 McDaniel v. State___________________________________________ --------------------------------------------- 209 Ga. 827 McLucas v. State Bridge Building Authority________________________________________ 210 Ga. 1
Ogletree v. State------------------------------------------------------------------------------------------ 209 Ga. 413 Osburne v. State-------------------------------------------------------------------------------------- 209 Ga. 345
Patrick v. State------------------------------------------------------------------------------------- 209 Ga. 645

XXX

Patterson v. State.--------------------------------------------------------------------------------------- 208 Ga. 689 Price v. State__________________________________________________________________________________________________ 208 Ga. 695

Redwine v. United States Tobacco Co.___________________________________________________ 209 Ga. 725 Reece v. State_______________________________________________________________________________________________ 208 Ga. 690 Revill v. State_________________________________________________________________________________________________ 210 Ga. 139

Ricks v. State_______________________________________________________________________________________

209 Ga. 2

Ridley v. State____________________________________________ ----------------------------- _________________ 208 Ga. 629

Robinson v. State____________________ ---------------------------------------------------------------------- 209 Ga. 650 Rosborough v. State ____________________________________________________________________________________ 209 Ga. 362

Savage v. State_______________ ----------------------------------- ---------------------------- ----- _______ 209 Ga. 374 Scott v. State____________________ ---------------------------------------------------------------------------- 210 Ga. 137 Seymour v. State______________________________________________________________________________________________ 210 Ga. 22
Sheffield v. State School Building AuthoritY---------------------------------------- 208 Ga. 575 Shurley v. State__________________________________________________________________________________________ 210 Ga. 136 Sparks v. State______________________________________________________________________________________ _______ 209 Ga. 250 Starr v. Balkcom__________________________________________________________________________________________ 209 Ga. 680 Starr v. State____________________________________________________________________________________________________ 209 Ga. 258 Strickland v. Peacock_________________________________________________________________________________ 209 Ga. 773 Strickland v. State_________________________________________________________________________________________ 209 Ga. 65
Strickland v. State _______ ----------------------------------------------------------------------- _____ 209 Ga. 675

Thornton v. State________ Turner v. State ____________________ --------------------------------- ______________

___ __ 209 Ga. 51 ____ 209 Ga. 532

Vun Cannon v. State_____________________________________________________ -----------------

208 Ga. 608

Waters v. DeKalb County___

--------------------------- ---------------- 208 Ga. 741

Webb v. Henlery, alias Tuck___________________________________________________________

209 Ga. 447

Whitfield v. State_____________________________________________________ --------------------------- ________ 209 Ga. 804

Williams v. State______________________________________________________________________

_____ 208 Ga. 704

Williams v. State_______ ------------------------- ___ __________________ ____________________

210 Ga. 207

Wise v. State _____________________ -----------------------

______________

209 Ga. 115

Wright v. State__________________________

_ 210 Ga. 212

COURT OF APPEALS OF GEORGIA Beazley v. DeKalb County________________________________ -------------------- ___

87 Ga. App. 910

Craig-Tourial Leather Co., Inc. v. Reynolds. . ----------------

87 Ga. App. 360

City of Marietta Hospital Authority v. Redwine_____ ------------------ 87 Ga. App. 629

Redwine v. Morgan-----------------------------------------------------------------------------
Sayer v. Lincoln County____________________________________________________________________ State of Georgia v. Cherokee Brick & Tile Co.___________________________ Strickland v. Peacock_________________________________________________________________________

88 Ga. App. 625
85 Ga. App. 754 89 Ga. App. 235 88 Ga. App. 384

Wilson v. State Highway Department____________________________________________ 85 Ga. App. 907

XXXI

SUMMARY OF LITIGATION, OPINIONS AND LEGISLATION DRAFTED DURING 1952-1953
CASES:
Total Number of Cases Closed During 1952-1953, and Pending as of December 31, 1953----------------------------------------------------------------------- 338
Number of Cases Terminating Favorably to State____________________________________ 169 Number of Cases Terminating Unfavorably to State____________________________ 40 Number of Cases Settled or Consent Order Taken_________________________:__________ 28
Total Number of Cases Closed______________________________________________________ 238 Number of Cases Pending as of December 31, 1953, in
Litigation or Awaiting Decision of Courts_____________________________ ------- 100
338

OPINIONS:
1952-0fficial Unofficial
1953-0fficial Unofficial

- 167 Total - 275 Total - 140 Total - 247 Total

GRAND TOTAL- 829

Official Published ------------------------------- 146 U no.fficial Published -------------------------- 178 Official Published _____________ _______ __ 120 Unofficial Published ---------------------------- 175
619

LEGISLATION DRAFTED:
Bills Drafted for Members of the General Assembly During 1952 and 1953...---------------------------------------------------------------------- ----------- 1887

XXXII

PART II Opinions of the Attorney General
1952

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AGRICULTURE-Bees (Unofficial) A license is required for carrying on the business of selling bees.
April 1, 1952 Honorable Leon Aycock
Your letter requesting a copy of my ruling regarding the collection of the sales tax on the sale of bees has been received by me.
It is possible you may have in mind an administrative ruling on this subject, which, if issued, would have been issued by Honorable Albert Dozier, Director of the Sales and Use Tax Unit. If he has issued no ruling and you are seeking an answer to this question, your inquiry should be addressed to Mr. Dozier since it would be a matter for administrative interpretation.
As for the license to engage in the bee business, the only requirement which to my knowledge now exists in the laws of this State is that provided by Section 5-901 of the 1933 Code of Georgia, which reads as follows:
"Section 5-901. All persons, firms or corporations desiring to carry on a busdness of the sale of bees, queens, nuclei, etc., shall be required to apply to the State Entomologist for a license so to do, and to accompany such application with a fee of $25; upon receipt of same, the State Entomologist, upon investigation of the party so applying, and at his direction, shall issue a license to the same. Said license shall be revoked by the State Entomologist at any time said perso:n, firm, or corporation shall fail to comply with this law or to carry out the rules and regulations established by the State Entomologist. All fees collected in this manner shall be turned over to the State Treasurer."

AGRICULTURE-Expenditure of funds The Department of Agriculture may legally JOin with the Federal Government in the expenditure of funds to disinfect premises which have been infected with vesicular diseases.

Honorable Tom Linder Commissioner of Agriculture

September 10, 1952

You ask whether or not the Department of Agriculture "is authorized to join in with the Federal Government in the expenditure of funds to disinfect and clean up premises which have been infected with vesicular diseases."
Code Section 62-1007 directs owners and persons in possession of quarantined livestock and premises to follow your direction by disinfecting and destroying the cause or causes of contagious or infectious diseases. Code Section 62-1009 directs you whenever you deem it wise and in the best interest of the state to eradicate contagious and infectious diseases to call upon the assistance of the political sub-divisions of this state which are authorized by this Section to appropriate money for aid in eradication work. Code Section 62-1002 directs you to cooperate with the officials of other states and with the Secretary of Agriculture of the United States to do those things deemed proper and best for the protection of the cattle of this state from any contagious and infectious disease. By these code sections it is clearly your duty to eradicate infectious and contagious diseases which threat!en the livestock of this state.
By the General Appropriations Act, Georgia Laws 1951, pages 417, 430, the Legislature made available a certain sum for the operation of all activities of the Department of Agriculture, and for certain indemnities. By an act of the General Assembly in 1937, Georgia Laws 1937, page 591, Chapter 62-11 of the

4
Code of 1933, applicable to the eradication of tuberculosis, was made applicable to the eradication of any and all diseases of cattle. The term "cattle" has been decided by our Supreme Court in the case of Davis vs. Collier, 13 Ga. 485,491, to include sheep and other domestic animals, and by parity of reasoning the term "cattle" is broad enough to include all those animals embraced by the term "livestock." To this effect, see Henry vs. State, 245 Ala. 487. Also see Seals vs. State, 29 Ala. App. 154, and 239 Ala. 5.
Therefore, inasmuch as you are charged with the duty of eradicating the disease and cooperating with officials of other states and the Secretary of Agriculture of the United States, I am of the opinion that the expenditure of funds for the purpose of destroying the cause or causes of an infectious or contagious disease is an appropriate expenditure of funds.

APPROPRIATIONS-City Court Retirement Fund (Unofficial) A bill providing a pension plan for judges and solicitors of the city courts is not required to originate in the House of Representatives, as such a bill is not "appropriating money" in the sense of the Constitution.

Honorable Douglas Carlisle

December 22, 1952

You ask the following three questions: 1. What is the significance of the phrase "or appropriating money" as found in Article III, Section VII, Paragraph X of the Georgia Constitution which provides: "All bills for raising revenue, or appropriating money, shall originate in the House of Representatives, but the Senate may propose, or concur in amendments, as in other bills." (Ga. Code Annotated, Section 2-1910) ANSWER: It is my view that the phrase "or appropriating money" refers

to the funds made available to the various State Departments and agencies for the payment of State expenses.
2. "Does this mean that a bill for spending money for a particular project must originate in the Georgia House of Representatives?"
ANSWER: Yes, if its purpose is to make available funds to finance the project.
3. "Would it be necessary that a bill to provide for a pension of City Court Judges and Solicitors originate in the House, where, under the provisions of that bill, the Judges and Solicitors contribute to a fund which is provided for in the bill; but the State of Georgia is required by the bill to pay the pensions or retirement pay regardless of whether sufficient sums remain in the established 'fund' 'l"
ANSWER: No, for the bill as stated in the question suggests that it merely sets up the framework for the project.

APPROPRIATIONS-Senate messenger and door-keepers allowance The Senate resolution providing extra compensation for its messenger and door-keeper comes within the scope of the general appropriations act.
February 7, 1952 Honorable George B. Hamilton State Treasurer
You ask my opinion as follows: "I am enclosing herewith Resolution of the Senate providing for an extra

5
$10.00 per day allowance for the Messenger and Doorkeeper, in addition to the allowance they are receiving under the Appropriation Act approved February 21, 1951.
"The specific question upon which I would appreciate your giving me a ruling is, 'Does this come within the scope of the specific limitations of the Legislative Appropriation Act as set forth in said Appropriation Act'?"
I have reviewed the General Appropriations Act, approved February 21, 1951 (Ga. Laws 1951, p. 417-444) and specifically Section 1 of the Legislative Department thereof. It is my opinion that the provision of Senate Resolution 107, adopted February 4, 1952, comes within the provisions of said section relating to the messengers, doorkeepers and other attaches of the Senate.
BANKS & BANKING-Trust companies The Chatham Savings and Loan Company, not having any trust powers, is not eligible to be vested with banking powers.
September 24, 1952 Honorable A. P. Persons Superintendent of Banks FACTS:
Chatham Savings and Loan Company was chartered by the Superior Court of Chatham County on July 25, 1885. Its corporate existence has been continued from that date until the present time. On August 24, 1913 the Secretary of State conferred upon this corporation trust powers pursuant to acts of the Legislature now codified as Sections 109-302 and 109-306. Subsequent to this action by the Secretary of State, the charter was revived by order of the Superior Court of Chatham County on August 31, 1925 for a period of twenty years, and thereafter the charter was renewed and extended for an additional period of thirty-five years from August 31, 1945.
The foregoing' does not purport to state all charter actions with respect to the subject corporation, but only those which are material to present the present question.
Chatham Savings and Loan Corporation has now applied to the Secretary of State for an amendment to its charter granting to it banking powers, and this application has been transmitted to the Superintendent of Banks for examination and approval or disapproval. QUESTION:
Under the facts above stated, may Chatham Savings and Loan Corporation be granted banking powers? ANSWER:
The right of Chatham Savings and Loan Corporation to obtain the powers here sought is determined by Code Sections 109-505 and 109-507. The first of these two sections, in part, provides:
"No trust company shall be allowed to receive deposits of any character unless and until its charter shall have been amended so as to confer upon it banking powers and privileges...." (emphasis added)
In like manner, section 109-507 prescribes the procedure by which a trust company may be authorized to receive deposits. No statute makes provision for the grant of such powers to any corporation or company other than a trust company. (Except, of course, Banking companies). It would, therefore, appear that we must first determine whether or not Chatham Savings and Loan Company is a "trust company."

6
The term "trust company" is defined in Code Section 109-501, as follows: "The term 'trust company' shall be construed to mean a corporation having power to execute trusts, and to act in any fiduciary capacity, whether such corporation has been heretofore organized under previous Acts of the General Assembly or is hereafter organized under this Chapter or any amendments thereto. . . ." Whether the subject corporation is a trust company within this definition is thus made to depend upon whether or not it has the described trust powers. It seems obvious that the term "having power" in the portion of Section 109501 just quoted embraces only corporate powers currently in existence at the time it becomes necessary to determine the character of the company. Stated another way, I, am of the opinion that no corporation is a trust company unless it then has valid trust powers. The trust powers which Chatham Savings and Loan Company obtained from the Secretary of State in 1913 have, in my opinion, either expired or been abandoned. Such trust powers could in no event have remained in life longer than the thirty years provided in Code Section 22-703. They may have expired at an earlier date, but for the purpose of this opinion it seems unnecessary to decide that question. When the subject company obtained from the Superior Court of Chatham County on August 31, 1925 a revival of its corporate charter, in my opinion, that judgment of revival did not serve to continue in effect the company's trust powers. I am forced to this conclusion because of the language of Article III, Section VII, Paragraph 17, (Code Section 2-1917) of the Georgia Constitution of 1945. By this paragraph it is provided: "... All corporate powers and privileges to banking, trust, insurance, railroad, canal, navigation, express and telegraph companies shall b!il issued and granted by the Secretary of State in such manner as shall be prescribed by law; .." A like provision is contained in the Constitution of 1877, at all times pertinent to this opinion. It is my view that this constitutional provision is jurisdictional and vests exclusive jurisdiction in the Secretary of State with respect to the grant of all corporate powers and privileges to the corporations enumerated. In passing, it seems highly significant to me that this exclusive jurisdiction of the Secretary of State is not limited to the grant of trust powers, banking powers, insurance powers and the like, but extends to the grant of all powers to banking companies, trust companies, etc. While it is not necessary to decide the question in this view of the matter, it seems quite likely that the subject corporation voluntarily abandoned its status as a trust company when it went to the Superior Court of Chatham County on August 31, 1925 to revive its charter. CONCLUSION In the light of the foregoing, I conclude that Chatham Savings and Loan Company is not presently a trust company. Since it is not a trust company, then it is not entitled to obtain banking powers under the provisions of Code Sections 109-505 and 109-507.

'1
BANKS AND BANKING-Deposits-street improvement bonds Bonds issued by a city do not constitute an obligation by the city and, therefore are not subject to the rule that the deposits of any one depositor in a bank may not exceed ten per cent. of the capital and unimpaired surplus of said bank.
February 19, 1952 Honorable A. P. Persons Superintendent of Banks
Your letter of recent date requested my opinion as to whether or not street improvement bonds, and particularly street improvement bonds issued under authority of the Charter of the City of Gainesville are such an obligation as is limited by Section 13-2023 (c) to ten per cent. of the capital and unimpaired surplus of a bank as being the obligation of any one obliger.
I am of the opinion that street improvement bonds issued pursuant to the statutory scheme contained in Chapter 69-4 are not the obligations of the surplus of a bank as being the obligation of any one obligor.
These bonds do not undertake to pledge the credit of the municipality and are liens against the abutting real estate and the owner thereof. To this extent the municipal function is to act as agent pursuant to statutory authority to collect the assessments for the street improvement and pay the same over to the holders of the security.
Inasmuch as the Charter authority for the City of Gainesville and procedure there provided is similar to that provided under Chapter 69-4, I conclude that street improvement bonds issued under that procedure are not the obligations of any one obligor and that Section 13-2023(c) is not applicable to this type of investment security.
BOUNDARIES, JURISDICTION & TIME OF THE STATE-Ft. Benning (Unofficial)
The procedure to be followed so as to vest exclusive jurisdiction of property located in this state to the federal government is discussed.
August 29, 1952 Honorable Russell C. Davison, Jr.
I am in receipt of your letter, requesting that this office investigate the possibilities of the Federal Government's taking exclusive jurisdiction over that part of United States Highway 280 south of Columbus which traverses Fort Benning reservation.
As outlined in the opinion furnished you on July 2nd, Georgia now has a valid cession law effective as to United States military reservations within the State. (Ga. Laws, 1952, p. 264). Assuming that the United States holds the title to the right of way over that portion of U. S. Highway 280 which lies within Fort Benning re.servation, the only step necessary to vest exclusive jurisdiction in the United States would be for the proper Federal Officer to indicate acceptance of exclusive jurisdiction in behalf of the United States by filing a notice of such acceptance with the Governor of Georgia as required by the Act of Congress codified as 40-255, U. S. C. A.
Thus, the question seems to be entirely whether or not the Federal Government desires to acquire, exclusive jurisdiction over said highway. If it wishes to do so, simple steps are available for accomplishing that effect, and nothing short of legislative action by Congress or the General Assembly could prevent

8
such transfer of jurisdiction. If the United States does not desire to acquire jurisdiction, I know of no method by which such transfer could be effected. Therefore, I do not see any practical purpose which would be served by undertaking to persuade the United States to accept jurisdiction. In addition, I am unable to determine the wisdom of such action since I have not conferred with other agencies of the State, such as the State Patrol and Highway Department, which would be affected by such a transfer of jurisdiction.
However, since it is a question entirely for the determination of Federal authorities, I suggest that you contact the office of the Judge Advocate General at Fort Benning if you wish to pursue the possibility of effecting such an acceptance.
BOUNDARIES-Jurisdiction of state over property ceded to U. S. Government-Cobb County (Unofficial)
1. The acquisition by the Federal Government of any property in this state between the dates of August 23, 1927, and January 1, 1935 (the dates of the approval and repeal of the general act of 1927 referred to, respectively) has operated to vest exclusive jurisdiction to said property in the Federal Government, the conditions of said act not being such as would conflict with the federal statute relating to the ceding of jurisdiction. 2. Except as stated in paragraph 3, below, the acquisition by the Federal Government of any property in this state under general state statutes (Code, Chap. 15) since January 1, 1935 (the date when the new provisions of the Code became effective relating to cession of jurisdiction) has not served to vest exclusive jurisdiction in the federal government, since said act contained provisions retaining civil and criminal jurisdiction over such ceded territory, but the applicable federal statute (40 U.S.C.A. 255), by interpretation, prevents the cession of exclusive jurisdiction where such conditions are imposed by state law. The federal act also requires a formal acceptance by the United States Government of the cession. 3. Any cession to the United States Department of Defense under the act of the Georgia legislature of 1951 referred to is not subject to the conditions stated in paragraph 2, above, and consequently has resulted in the ceding of exclusive jurisdiction to the United States. 4. Specific statutes of this state ceding jurisdiction to the federal government are not controlled by the general state statutes hereinbefore discussed, but depend upon their own terms. 5. Applying the foregoing principles, it follows that the federal government does not have exclusive jurisdiction over the Marietta Army Air Field. (Overruling earlier opinion)
June 16, 1952 Honorable James T. Manning
In further reference to your letter requesting my opmwn on the question of criminal jurisdiction of the state lands in Cobb County, owned by the United States, I am pleased to advise you as follows:
DISCUSSION OF LAW Article I, Section 8, Clauses 17 and 18 of the Constitution of the United States provide: "The Congress shall have Power to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the

9
Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dockYards, and other needful Buildings;-And to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Under these provisions, the United States may gain exclusive jurisdiction over lands acquired within a state either by purchase with the consent of the state legislature or by cession of jurisdiction by the state legislature to the United States and acceptance of the cession by Congress. 13 Op. Atty. Gen. 460.
The Act of Congress of February 1, 1940, c. 18, 54 Stat. 19, codified as Section 255 of Title 40, U.S.C.A. provides:
"Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter. be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted. R.S. 355; June 28, 1930, c. 710, 46 Stat. 828; Feb. 1, 1940, c. 18, 54 Stat. 19; Oct. 9, 1940, c. 793, 54 Stat. 1083; July 26, 1947, c. 343, Title II, 205 (a), 61 Stat. 501."
The Supreme Court of the United States in construing this Act in the case of Adams v. United States (319 U. S. 312), heidi
"The Act created a definite method of acceptance of jurisdiction so that all persons could know whether the government had obtained 'no jurisdiction at all, or partial jurisdiction, or exclusive jurisdiction.' "
"Since the government had not accepted jurisdiction in the manner required by the Act the federal court had no jurisdiction of this proceeding. In this view it is immaterial that Louisiana statutes authorized the government to take jurisdiction, since at the critical time the jurisdiction had not been taken.''
The state legislature, in its act consenting to purchase by the United States or ceding jurisdiction to the United States may reserve such authority over the ceded territory as will not be incompatible with the exercise of exclusive jurisdiction by the United States. Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525. Reservations of the right to serve process and to resume full jurisdiction if the United States ceases to own the land are not incompatible with the federal requirements. 39 Op. Atty. Gen. 155; Fort Leavenworth R. R. Co. v. Lowe, supra. However, the reservation of the right to administer the criminal laws of the state over such area or the reservation of civil and criminal jurisdiction over persons and citizens within ceded territory is incompatible with the transfer of exclusive jurisdiction. 31 Op. Atty. Gen. 265; 31 Op. Atty. Gen. 282.
The General Assembly of Georgia provided, in an act approved August 23, 1927 (Ga. Laws 1927, p. 352), as follows:

10
"Section 1. Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of the same, that the consent of the State of Georgia is hereby given, in accordance with the 17th clause, 8th section, and of the 1st article of the Constitution of the United States, to the acquisition by the United States, by purchase, condemnation, or otherwise, any land, in this State which has been or may hereafter be acquired for custom-houses, postoffices, arsenals, other public buildings whatever, or for any other purposes of government.
"Section 2. Be it further enacted by the authority aforesaid, that the exclusive jurisdiction in and over any land so acquired by the United States shall be and the same is hereby ceded to the United States for all purposes, except that the State retains the right to serve thereon all civil and criminal processes issued under authority of the State; but the jurisdiction so ceded shall continue no longer than the said United States shall own such lands.
"Section 3. Be it further enacted by the authority aforesaid, that the jurisdiction hereby ceded shall not vest until the United States shall have acquired the title to the said lands by purchase, condemnation, or otherwise; and so long as the said lands shall remain the property of the United States when acquired as aforesaid, and no longer, the same shall be and continue exempt and exonerated from all State, county, and municipal taxation, assessment, or other charges which may be levied or imposed under authority of the State."
The reservations made therein were not incompatible with the exercise of exclusive federal jurisdiction, and any lands in Georgia purchased by the United States while that act was in force would have been acquired by the consent of the Georgia Legislature, and full jurisdiction would have passed to the United States, since at that time Congress had specified no manner of acceptance of jurisdiction, and the transfer would have been automatic. 9 Op. Atty. Gen. 129; Bowen v. Johnston (306 U. S. 19).
However, the General Assembly of Georgia, in adopting the Georgia Code of 1933, changed the language of Georgia's cession laws to read as follows:
"15-301. The consent of the State is hereby given, in accordance with the 17th clause, section 8, of Article I, of the Constitution of the United States, to the acquisition by the United States, by purchase, condemnation or otherwise, of any lands in this state which have been or may hereafter be acquired for sites for customs houses, courthouses, post offices, or for the erection of forts, magazines, arsenals, dockyards, and other needful buildings."
"15-302. Exclusive jurisdiction in and over any lands so acquired by the United States is hereby ceded to the United States for all purposes except service upon such lands of all civil and criminal process of the courts of this State; but the jurisdiction so ceded shall continue no longer than said United States shall own such lands. The State retains its civil and criminal jurisdiction over persons and citizens in said ceded territory, as over other persons and citizens in this State. Nothing herein shall interfere with the jurisdiction of the United States over any matter or subjects set out in the Acts of Congress donating money for the erection of public buildings for the transaction of its business in this State, or with any laws, rules, or regulations that Congress may adopt for the preservation and protection of its property and rights in said ceded territory, and the proper maintenance of good order therein."
"15-303. The jurisdiction hereby ceded shall not vest until the United States shall have acquired the title to the said lands by purchase, condemnation, or otherwise; and as long as the said lands shall remain the property of the United States when acquired as aforesaid, and no longer, the same shall be and continue

11
exempt and exonerated from all State, county, and municipal taxation, assessment, or other charges which may be levied or imposed under authority of the State."
The effective date of the Code of Georgia was January 1, 1935 (See Ga. Laws 1933, p. 31, Ga. Laws 1935, p. 84). The act adopting the 1933 Code of Georgia declares that the provisions of the Code shall have the effect of statutes enacted by the General Assembly and that all laws in conflict with the adopting act are repealed. Therefore, in view of the language of the adopting act and the decision of the Supreme Court of Georgia in Central of Georgia Railway Company v. State of Georgia, 104 Ga. 831, the provisions of the 1933 Code must be taken to repeal and supersede the act of 1927.
Since the 1933 Code contained reservations of power incompatible with the transfer of full and exclusive jurisdiction to the United States, the provisions of the Code are insufficient to constitute consent or cession of jurisdiction to the United States under Article I, Section 8, Clause 17 of the Constitution of the United States. Therefore, land acquired in Georgia by the United States subsequent to January 1, 1935, remained under the full and exclusive jurisdiction of the state of Georgia, the consent or cession of jurisdiction provided for in the 1927 act having been revoked by adoption of the 1933 Code.
Of course, jurisdiction acquired by the United States over any Georgia territory while the 1927 act remained in force, that is, from August 23, 1927 to January 1, 1935, was not recaptured by Georgia as a result of the 1933 Code, since jurisdiction once ceded may not be regained by act of the state alone.
By an act of the General Assembly approved February 15, 1952 (Ga. Laws 1952, p. 264), the cession laws were amended as follows:
"Section 1. Section 15-302 of the 1933 Code of Georgia relating to the jurisdiction of the United States over certain lands in this State is amended by inserting after the word 'State' at the end of the second sentence thereof the words 'except as to any ceded territory owned by the United States and used by the Department of Defense but the State retains jurisdiction over the regulation of public utility services in any ceded territory,' so that said Section when so amended shall read as follows:
"'15-302. Exclusve jurisdiction in and over any lands so acquired by the United States is hereby ceded to the United States for all purposes except service upon such lands of all civil and criminal process of the courts of this State; but the jurisdiction so ceded shall continue no longer than said United States shall own such lands. The State retains its civil and criminal jurisdiction over persons and citizens in said ceded territory, as over other persons and citizens in this State, except as to any ceded territory owned by the United States and used by the Department of Defense, but the State retains jurisdiction over the regulation of public utility services in any ceded territory. Nothing herein shall interfere with the jurisdiction of the United States over any matter or subjects set out in the Acts of Congress donating money for the erection of public buildings for the transaction of its business in this State, or with any laws, rules, or regulations that Congress may adopt for the preservation and protection of its property and rights in said ceded territory, and the proper maintenance of good order therein.' "
The incompatible reservation of jurisdiction was thus removed in regard to lands owned by the United States and used by the Department of Defense, but was maintained in respect to all other uses to which federal property might be put. Although the new act does make a further reservation of jurisdiction, that of regulating public utilities in any ceded territory, it is my opinion that this

12
reservation is not incompatible with the federal requirements, and the act effectively cedes jurisdiction over lands used by the Department of Defense. Of course, such jurisdiction will not pass until acceptance by the United States in conformity with Section 255 of Title 40 U.S.C.A.
Finally, the letters of acceptance of jurisdiction forwarded by the Secretary of War to the Governor of Georgia dated April 29, 1943, November 4, 1943, May 12, 1944, and February 15, 1945 attempted to accept jurisdiction for the United States under the act of 1927. Since this act was not in effect on those dates, having been superseded by the 1933 Code, which reserved state jurisdiction, these letters were ineffective to accomplish the intended purpose.
CONCLUSION In view of the foregoing, it is my opinion that the United States Government now has exclusive jurisdiction over any lands purchased within Georgia between August 23, 1927 and January 1, 1935, the effective period of the 1927 act, provided that jurisdiction has not by act of Congress been returned to the State of Georgia. I am of the further opinion that the United States has no jurisdiction over any property acquired in Georgia since January 1, 1935, except such jurisdiction over areas used by the Department of Defense, acceptance of which has been designated in conformity with Section 255 of Title 40 U.S.C.A. since February 15, 1952, the effective date of the 1952 act. Nor can the United States in the future acquire jurisdiction over any Georgia territory except that used by the Department of Defense, jurisdiction over which is accepted in the manner prescribed by Section 255 of Title 40 U.S.C.A., until further legislative action is taken. Therefore, it is my unofficial opinion that the State of Georgia retains jurisdiction over all territory within its boundaries not ceded to the United States prior to 1927 or in the manner herein recognized as valid since August 23, 1927, and you should continue to prosecute persons in the name of the state for crimes committed upon lands belonging to the United States, jurisdiction over which has not been ceded to or accepted by the United States, in conformity with the views set forth herein. My opinion of November 13, 1946, to The Adjutant General of Georgia (Opinions of the Attorney General of Georgia, 1945-47, p. 53) is hereby overruled and reversed insofar as that opinion states jurisdiction over Marietta Army Air Field to be in the United States as a result of acceptance of jurisdiction by the Secretary of the Army in his letter to the Governor of ;May 12, 1944. This opinion relates, of course, to cession statutes of general scope only and in no manner concerns or affects specific statutes ceding jurisdiction over specific lands to the United States, or to general cession statutes adopted prior to August 23, 1927.
BRUNSWICK PORTS AUTHORITY-State Funds (Unofficial) In order for state funds to be used to improve the property belonging to the Brunswick Ports Authority, said property would have to be conveyed to the State. The state could then make the expenditures and lease the property back to the Authority.
January 21, 1952 Honorable Charles L. Gowen
You have asked me to advise you under what terms and conditions state funds could be used to improve the port facilities now held by the Brunswick Port Authority at the Port of Brunswick.

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The Brunswick Port Authority is a public corporation created by an act of the General Assembly of Georgia, approved March 8, 1945 (Georgia Laws 1945, page 1023), and is charged with the duty of developing public port facilities at Brunswick, Georgia. It now owns the J. A. Jones shipyard property which has a wet basin, warehouses and docks, as well as storage facilities. I am advised that the Brunswick Port Authority purchased this property from the United States and still owes the Government approximately $315,000.00 on the purchase price which is secured by a deed to secure debt on the real property. I am also advised that about $150,000.00 is needed at this time to dredge the wet basin to the depth necessary to accommodate modern ocean freighters and to repair the existing docks. I am also informed that a considerable movement of freight is scheduled to move through the port upon completion of these improvements.
It is my view that the State of Georgia could buy this property from the Brunswick Port Authority for a sum equal to the amount necessary to finish paying for the property. In that event the legal title to the property would be conveyed to the State of Georgia free and clear of aPy liens and encumbrances. The Governor then would be authorized in his discretion to name a committee to handle funds which the Budget Bureau might make available to complete the dredging and other necessary improvements. The State of Georgia could then lease the facilities to the Brunswick Port Authority for operation by it.
The foregoing outlined procedure follows closely the principle and plan used in securing the dock facilities now owned by the state at Savannah.
CIGARETTES-Minimum Resale Price (Unofficial) In computing prices under the act relating to the minimum resale price of cigarettes, where fractions are involved, the price should be taken as the number next highest to the fraction.
February 27, 1952 Mr. W. S. Middaugh
I am pleased to acknowledge receipt of your letter requesting information concerning the "round of fractions" in the minimum resale price of cigarettes obtained after making the statutory computation of the minimum cost of doing business and adding same to the invoice cost of the cigarettes.
In any case where there is a fraction involved the price of the package of cigarettes will be the amount next highest to the fraction. In other words, if the computation is 22.3 cents the sale price will be 23 cents.
CONSTITUTION-Amendment-compensation of newspaper for illegal advertisement The General Assembly may by resolution compensate certain newspapers which published constitutional amendments under direction from the Governor who had acted without legal authority.
February 12, 1952 Honorable Herman E. Talmadge Governor, State of Georgia
You request me to give you an official ruling as to whether or not House Resolution 146-619a is in compliance with the constitutional and statutory provisions of the current Georgia laws.
This resolution is a special appropriation resolution authorizing you, as

14
Governor, to reimburse certain newspapers for actual loss or damage11 sustained in 1948 as a result of an unauthorized act on the part of the Acting Governor, M. E. Thompson. As a matter of information, and for the purpose of determining the amount of damages and the manner of payment the resolution relates the circumstances as follows:
"WHEREAS, Honorable M. E. Thompson, Acting Governor of Georgia, caused certain proposed constitutional amendments to be published in numerous newspapers over the State, believing at the time, that he was authorized to enter into such contracts; and
"WHEREAS, approximately 147 newspapers in the State of Georgia, likewise believing that the Acting Governor had the authority to publish said proposed constitutional amendments as above set forth, and relying on their belief as to the legality of such an undertaking, actually caused said amendments to be published several times in their local newspapers, and
"WHEREAS, on September 17, 1948, the Honorable Eugene Cook, Attorney General of Georgia, at the request of the Acting Governor, rendered an official opinion in which he held in effect that it was illegal to advertise such proposed constitutional amendments in more than one newspaper in each congressional district except in those instances where the proposed constitutional amendment had a direct effect upon a particular county, and that in such instances the amendment could likewise be advertised in the county or counties directly affected thereby. The Attorney General also ruled that the Acting Governor could divide the 17 amendments between newspapers in each congressional district at his discretion as prescribed by law, and
"WHEREAS, in pursuance of the aforesaid opinion of the Attorney General, the Acting Governor immediately requested all of the newspapers with the exception of those specially designated by him in conformity with the opinion of the Attorney General to stop publishing said proposed constitutional amendments, and
"WHEREAS, many newspapers in this State have not received any emolument for the times they have published these amendments after being directed to do so by the Acting Governor and up to the time of receiving instructioru; from the Acting Governor to stop such publications."
In addition to the foregoing recitals of facts and circumstances, the resolution provides under what conditions payments shall be made, and then clearly defines the purpose and intent of the Legislature in the following language:
"The General Assembly of the State of Georgia believes it to be a moral obligation on the part of the State to pay all newspapers for services actually rendered where the papers, acting in good faith, have actually sustained a loss by virtue of a misunderstanding and misapprehension of the law prior to the opinion of the Attorney General on September 17, 1948."
It is clear from the foregoing portions of the resolution that the General Assembly is not attempting to amend or to alter the Constitutional and statutory provisions with reference to the publication of proposed constitutional amendments as provided for in Paragraph I, Section I of Article XIII of the State Constitution and Code Section 34-3501, which provisions formed the basis of my opinion of September 17 ,1948. It simply seeks to remedy a wrong done to the newspapers by the unauthorized act of the Acting Governor. It defines the nature of the appropriation as one of damages or losses sustained by reason of this act. It uses the circumstances as a yardstick for determining the amount of the damages and the conditions under which they are to be paid. Reference to these circumstances and the services rendered have no other legal significance.
It is the prerogative of the General Assembly of Georgia to compensate for

15
losses or damages resulting from the negligence or wrongful acts of State officials and employees, and it may select its own yardstick for ascertaining the amount due and the conditions of payment, provided such action does not amount to a gratuity.
The fact that the publication of the proposed constitutional amendments, as directed by the Acting Governor, was unauthorized by law does not render the appropriation illegal. As pointed out before, these unauthorized acts resulted in damages for which the Legislature and this resolution seek to pay. Moreover, the payment would not offend the constitutional prohibition against gratuities since the basis for payment is actual damages suffered by the newspapers from an unauthorized act committed by a state official.
This is no new approach on the part of the General Assembly of Georgia to discharge its moral obligations where recovery would otherwise be stopped by sovereign immunity or by unauthorized expenditure of state funds by the fiscal authorities of the state. This type of appropriation is frequently made by the General Assembly in matters involving negligence and wrongful acts on the part of state officials and employees. Numerous examples could be cited for reference purposes.
It is my opinion that House Resolution 146-619a is in compliance with the Constitution and current statutory laws of Georgia.

CONTRACTS-erroneous bids Under the facts stated, a bona fide error was made in the bids of one of the contractors submitting competitive bids and the Commissioner of Agriculture would be authorized to accept the next highest bid.

March 5, 1952

Honorable Tom Linder

Commissioner of Agriculture

FACTS:

Pursuant to an invitation to bid issued by the Department of Agriculture

for certain construction work at Thomasville, Georgia, which invitation provided

for the rejection of any or all bids, several lump sum sealed bids were offered.

These bids were opened in the office of the Commissioner of Agriculture on Febru-

ary 25, 1952, at 10:00 a.m., as follows:

$81,980

$78,000

79,993

66,800

78,200

47,773

Immediately after the bids were opened the apparent low bidder went to the

outer office and secured his work papers and began checking for an error which

he thought he must have made. He found it on the adding machine tape. The

adding machine, because of faulty mechanical operation, had dropped $10,000 in

totals three separate times, resulting in a $30,000 error. He brought his work

papers to Mr. Earl Wingo immediately upon making this discovery. About thirty

or forty minutes had elapsed from the bid opening until the time the error was

called to the attention of the Department of Agriculture official. The error was

confirmed by Mr. Wingo, and the work papers and adding machine tape have

been ever since in the possession of Mr. Wingo. The adding machine used. is

still making the same type errors. The apparent low bidder had deposited with

the Department of Agriculture a 5% good faith bond but no formal construction

contract has been entered into between this bidder and the Department of

Agriculture.

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On February 29th the apparent low bidder requested that he be allowed to correct his bid by the amount of the machine error or else be allowed to withdraw the bid completely.
It appears that the next low bidder is ready, willing and able to enter into a formal construction contract at his own bid amount.
QUESTION: What should be done in respect to the apparent low bidder, and should the
contract be awarded to the next low bidder?
ANSWER: Great care must be taken where mistakes are alleged in order to prevent
collusion and fraud by the parties making the proposals. In this instance not only does there appear no evidence to support any charge of collusion and fraud but rather the overwhelming evidence is that there was merely a mistake by an adding machine-nothing more-which resulted in a bid that otherwise would not have been made.
Section 20-308 of the Code of Georgia of 1933 provides: "If the consideration be founded in a mistake of fact or of law, the promise founded thereon can not be enforced." Section 37-202 provides that the mistake relievable in equity is some unintentional act or error arising from ignorance and further provides that the power to so relieve from such mistakes shall be exercised with caution. Section 37-207 provides that equity may rescind and cancel a contract upon the ground of mistake of fact of one party only material to the contract. In the case Singer v. Grand Rapids Match Company, 117 Ga. 86, the Court was concerned with a contract of sale but stated the principle that in every contract of sale the minds of the parties must meet and further stated: "2. Ambiguity, or mistake by a slip of the pen or tongue can not be caught up and used as the basis of a contract, particularly where such a mistake is known, or, from all the circumstances, should be known to the party seeking so to use it." In Callan Court Company v. Citizens and Southern National Bank, Trustee, 184 Ga. 87, the Court quoted with approval 2 Pomeroy's Equity Jurisprudence, as follows: "Mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in, . . . . Belief in the present existence of a thing material to the contract which does not exist, or in the past existence of such a thing which has not existed. It will be remembered that the essential element of a mistake was defined to be a mental condition or conception or conviction of the understanding." It is the general doctrine that an executory contract may be cancelled if it was entered into through mistake of one of the parties, if the mistake is of the existence of the whole consideration and is not due to culpable negligence and if the parties may be placed in status quo. This doctrine was applied in the case of Murray State Normal School v. Cole, 273 S. W. 508 (Ky., 1925) and a deposit was ordered returned at the instance of a bidder who discovered a few hours after his bid had been accepted that he had entirely omitted an item of cut stone and immediately notified the board and sought a correction. In the case of New York v. Dowd Lumber Company, 125 N. Y. Supp. 394 (1910) a bidder who gave bond instead of making a deposit was held entitled, as well as the surety, when sued on the bond for refusing to execute any contract. His defense was that he had made an honest mistake in computing his bid, such mistake being that certain items were inadvertently set down at only one-tenth

17
of the amounts intended due to errors in multiplication. In the case of Moffet, H. & C. Company v. Rochester, 178 U. S. 373, a bidder
was held entitled to have its bid rescinded where it informed the city board of a clerical error which consisted of a near-sighted engineer in transcribing figures by accident and mistakenly inserting in the proposal one-tenth of the price per cubic yard and also another error in transcribing. In this case the bidder requested that he be allowed to withdraw his proposal and the facts were that no official action with respect to letting the contract had been taken.
In the case of Hattiesburg v. Cobb Brothers Construction Company, 163 So. 676 (Miss., 1935), it was conceded by both parties that a bidder on a municipal construction job was entitled to the return of his guaranty deposit where he had
. based his bid upon an erroneous calculation as to the cost of the work and
materials. As I pointed out earlier, great care must be taken where mistakes are alleged
in order to prevent fraud being perpetrated upon the state but the peculiar, uncontroverted facts in this case lead me to the inescapable opinion that the bid of the apparent low bidder be rejected and the bid of the low bidder in truth and fact be accepted and that he be awarded the construction contract because of this machine error which resulted in such a mistake that there could be no meeting of the minds and, therefore, no basis of contract, resulting in no liability upon the apparent low bidder or his bondsman.
CONTRACTS-Munnicipalities (Unofficial) There are no laws which would prohibit a municipality from entering into a construction contract with an unincorporated company; no licenses are required for contracting with municipalities.
January 2, 1952 Friederich Excavating Service
This will acknowledge your letter in which you request information as to whether or not an individually owned company, not incorporated, could bid on a construction contract with municipalities in the State of Georgia and whether you would need any permits or licenses.
I wish to advise that the laws of this State do not provide that contractors for construction work with municipalities have permits or licenses. However, the law does provide that the contractor execute a bond, and your attention is called to Section 23-1705 of the Code of Georgia, as follows:
"No contract with this State, a county, municipal corporation, or any other public board or body thereof, for the doing of any public work shall be valid for any purpose, unless the contractor shall give bond, payable to the State or other body contracted with, with good and sufficient surety, for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery, or materials under or for the purpose of such contract, conditioned for the completion of the contract in accordance with its terms, for saving the obligee free from all costs and charges that may accrue on account of the doing of the work specified for the payments as they become due of all just claims for work, tools, machinery, skill and materials furnished by persons under, or for the purpose of, such contract, and for a compliance with the laws appertaining thereto. The penalty of such bond shall be not less than the contract price."

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CONTRACTS-Statute of Limitations-Mortgages (Unofficial) Various statutes relative to the statute of limitations applicable to the foreclosure of bonds and mortgages are discussed.

Miss Vera McNally,

April 2, 1952

You request my opm10n relative to the statute of limitations in Georgia

for the foreclosure of bonds and mortgages. In reply to your letter, I am pleased

to advise as follows.

The various provisions of the Code of Georgia affecting your proposition are:

"3-703. (4539) Actions upon specialties.-Actions upon bonds or other instru-

ments under seal shall be brought within 20 years after the right of action shall have accrued, but no instrument shall be considered under seal unless so recited in

the body of the instrument. (Act 1806, Cobb, 566. Acts 1855-6, p. 234) ."

"3-705. (4361) Simple contracts in writing.-All actions upon promissory

notes, bills of exchange, or other simple contracts in writing shall be brought

within six years after the same shall have become due and payable."

"3-712. (4369) Limitations in equity; laches.-The limitations herein provided

shall apply equally to all courts; and in addition to the above, courts of equity may interpose an equitable bar, whenever, from the lapse of time and laches of

the complainant, it would be inequitable to allow a party to enforce his legal

rights. (Acts 1855-6, p. 236) ."

"67-116. (3268) Debt barred, mortgage may be foreclosed.-That the note

or other evidence of debt is.barred does not prevent the creditor thereafter availing himself of the mortgage or other security unless the mortgage or other security itself is barred. (47 Ga. 273, 8 Ga. 325) ."

Thus, it appears that the period of limitations for bonds and mortgages not under seal is six years, and for sealed instruments, twenty years. Also, fore-

closure may be made upon a mortgage even though the statute has expired against

the debt the mortgage was given to secure, provided the statutory period has not

run against the mortgage itself. In addition, laches may be applied in particular cases to prevent inequities.

CONTRACTS-Statute of limitations The statute of limitations upon open accounts is five years, and partial payments on such accounts does not suspend said statute.
September 30, 1952 Mr. U.S. Bond, Manager
You inquire as to the statut~ of limitations applicable to open accounts in Georgia, and the manner in which the running of the statute of limitations may be tolled. You further inquire as to whether or not partial payment made on accounts renews the account.
Code Section 3-706 of the 1933 Annotated Code of Georgia reads as follows: "All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied assumpsit or undertaking, shall be brought within four years after the right of action shall have accrued." Partial payments made on such accounts would not in any way renew the account and suspend the statute of limitations. On all open accounts, the statute of limitations commences to run from the date of purchase of the last item on said account.

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CORPORATIONS-Charitable (Unofficial) The laws relating to the organization and operation of charitable corporations are stated.
January 8, 1952 Mr. James T. Tilt
You request certain information with regard to the organization and operation of charitable corporations.
In regard to this matter I refer you to Code Section 22-413 which incorporates the Legislative Act of 1937-38, Extra Session, page 303, and is as follows:
"Timber protective organizations, library, and other literary, charitable, or social organizations, which have no cap,ital stock, and are not organized for individual pecuniary gain, may be incorporated under the provisions of section 22-401, all of the provisions of which are hereby made applicable to the organizations aforesaid."
I further refer you to Code Section 22-414, this being a codification of the Legislative Act of 1855-56, page 272, as follows:
"The societies referred to in the preceding section shall be bodies politic and corporate for the purposes .of receiving in their distinct and proper names, by their trustees or officers, all property, both personal and real, by purchase, gift, or bequest. They may plead and be impleaded, contract and be contracted with. When any such society shall have entered the names of its trustees or officers and shall have recorded its name, style, and objects as required by law it may defend and be defended, and shall then be entitled to all benefits of sections 22-409 to 22-411."
CORPORATION-Registration (Unofficial) There are no laws requiring corporations to register with the ordinary or the Attorney General.
January 31, 1952 Superior Stone Company
You request certain forms for the registration of corporations. I am pleased to advise you that I do not believe there is any state law requiring corporations to register with the ordinary, and I know of none requiring you to register with the Attorney General.
CORPORATIONS-Franchise taxes Sewing machine corporations are now subject to the corporation franchise tax. January 31, 1952
Hon. W. Harvey Atkinson Director, Property & License Tax Unit
QUESTION: Are sewing machine corporations which have heretofore been exempt from
the corporation franchise tax by the provisions of the General Tax Act now taxable for corporation franchise taxes by the repeal of the special occupational tax effective June 30, 1951?
ANSWER: The question which you have asked arises from the construction of a pro-
vision of Section 92-2404 of the 1933 Code of Georgia which relates to the return

20
and payment of corporate franchise taxes. The pertinent part of that Code Section is as follows:
" . . . Provided, that this section and sections 92-2401 to 92-2403 shall not apply to insurance or sewing-machine companies, which are separately taxed by other provisions of law ... " (emphasis supplied.)
The exemption provided by the above-quoted provision is limited to sewingmachine companies which were being taxed separately under the special occupational tax as it existed at the time this provision was enacted. However, the use of the verb "are" causes this provision to be one not restricted in its effect to those ;named companies which were required to pay the special occupational tax on the effective date of this provision, but that verb causes this provision to have the effect of being constantly current in exempting companies of the character named.
Therefore, it is my opinion that since the special occupational tax which sewing-machine companies have been required to pay in the past has been repealed and will not be payable for the year 1952 or any succeeding year under the present taxing laws of our state, the exemption should no longer apply.

COUNTIES-Auctions of automobiles (Unofficial) Counties have no authority to license or regulate automobile auctions.
June 11, 1952 Honorable Harold S. Willingham
You request advice as to the authority of counties to license and regulate automobile auctions.
I have made a fairly thorough study of this question and have reached the conclusion that under our present statutes counties have no authority to license or regulate automobile auctions. There are no code provisions which would cover this particular situation, although we do have some provisions relating to auctions. Counties have no general licensing authority and it is possible that it would require a general bill or maybe even a constitutional amendment to grant them this power. ,

COUNTIES-Commissioner-Clerk (Unofficial)

A member of the Board of Commissioners of Roads and Revenues of Hall



County is not eligible to hold the office of Clerk of said Board.

November 1, 1952

Mr. James A. Dunlap

You asked my opinion if one of the members of the Board of Commissioners

of R9ads and Revenues of Hall County can also hold the office of Clerk of

said Board.

In the Georgia Laws 1935, pages 661-667, the Board of Commissioners of

Roads and Revenues for Hall County was created. Sections Seven and Eight

deal with the Clerk of the Board, and state that the Board is empowered to

elect a Clerk, to prescribe his compensation, and outline his duties. In Section

Eight it is stated that the Clerk shall give a bond payable to the Board and

that the term of the office of the Clerk shall be at the pleasure of the Board.

In the case of Malone v. Minchew, 170 Ga. 687, the Supreme Court held that

a member of a county board of commissioners of roads and revenues is a county

officer. Code Section 89-103 states that no person shall hold more than one

county office. However, I can find no ruling which states that the position of

21
the clerk of the board of commissioners of roads and revenues is a county office. There is no prohibition in the act of 1935 supra, against one of the members
of the board beng employed as the clerk. However, there is no authority given for such employment. Where there is no such prohibition or no such power given, then it is necessary to determine the intention of the General Assembly by the wording of the act, unless other statutes elsewhere so prohibit or so empower.
It is my opinion that since Section Eight states as follows: "The term of office of said Clerk shall be at the pleasure of the Board," that the answer to the problem is found in that sentence. It would not seem likely that one of the members of the board could vote himself into the office of clerk and be one of the controlling factors in maintaining that position. Particularly would this be true in Hall County where two of the three members of the Board are given the power to transact business, being a majority of the three members constituting the Board. In the absence of one other member, if the Clerk of the Board was also a member of the Board, then the Clerk and one other member could employ him or discharge him, inspect and supervise his work, etc., all of which mainifestly would be unreasonable, inefficient, and unsatisfactory.
It is, therefore, my opinion that the Clerk of the Board of Commissioners of Roads and Revenues of Hall County cannot be a member of the Board.
COUNTIES-County Commissioner-election (Unofficial) 1. The ordinary of Gordon County is authorized to call an election to fill the vacancy for an unexpired term in the office of commissioner of roads and revenues in said county. 2. The County Executive Committee may legally call a primary election for said matter.
July 25, 1952 Honorable Ronald F. Chance
You request a ruling on two questions caused by the death of Mr. J. H. Payne, the Commissioner of Roads and Revenues. The pertinent part of your letter reads as follows:
"The first question is should the Ordinary cali an election to fi~l the vacancy for the unexpired term and also the new term, beginning January 1, 1953, and if so, the procedure? The Act creating the sole Commissioner in Gordon County was Acts of 1920, page 541, I believe. The second question is whether or not the County Executive (Democratic) Committee is authorized to call a primary in view of the Act of 1951, page 655, codified as Chapter 34-36, Georgia Code, Annotated, or any other law that might be in conflict with such primary.
"Mr. Payne ran in the last primary and would have been the Democratic nominee in the coming general election for the full term, beginning January 1, 1953. The Ordinary has appointed a man to serve until the general election."
Section 23-801 of the Annotated Code of Georgia reads as follows: "When a vacancy occurs in the office of commissioner of roads and revenues in any county in which the special Act creating a board of commissioners of roads and revenues for said county makes no provision for succession to fill such vacancy, and the unexpired term of office exceeds six months in duration, it shall be the duty of the ordinary of any such county to call a special election to elect a successor and fill said vacancy in not less than 20 nor more than 30 days, said election to be held as provided by existing laws governing all special elections and the cost of same to be defrayed by the proper county authorities. In the event the unexpired term to be filled is less than six months in duration,

22
the judge of the superior court of the county shall have power to appoint a successor to fill the unexpired term."
A study of the act creating the office of Commissioner of Roads and Revenues for Gordon County shows, however, that a procedure for filling a vacancy in this office has been provided for in Section 1 of the original act found in Georgia Laws, 1920, p. 541. This procedure is still applicable inasmuch as it has not been changed by subsequent amendments. That section reads as follows:
"Be it enacted by the General Assembly of the State of Georgia and it is hereby enacted by the authority of the same, That the office of commissioner of Roads and Revenues, in and for Gordon County, State of Georgia, is hereby created. Said Commissioner shall be elected at the regular election to be held for State and county officers next following the passage of this Act; and quadrennially thereafter, in the same manner as other county officers are elected, and the Commissioner so elected at said election shall, after qualification, enter upon the discharge of his duties on the first day of January, 1921, the time when this Act becomes effective, and shall hold office for the term of four years and until his successor is elected and qualifed. Persons qualfied to vote for members of the General Assembly shall be eligible to hold said office. Should a vacancy occur in said office the same shall be filled by the Ordinary, who shall immediately appoint a Commissioner to hold until the next general election, when his successor shall be elected. The ordinary shall act in the interim before making appointment."
That section provides that the ordinary shall appoint a person to serve as commissioner until the next general election when his successor shall be elected. Under the present circumstances it possibly seems logical that an election should be held only to choose a person to take office January 1, 1953, inasmuch as the new term, according to your letter, begins on that date. However, the language of the statute indicates to me that this is not the case. I am of the opinion that an election should be held to fill the unexpired term and also to choose a person for the new term beginning January 1, 1953. Let us assume that this vacancy had occurred before the last general election. It is obvious that a person could not have been elected at. that general election which was held in 1950 for the new term beginning January 1, 1953. Therefore, it appears evident that the General Assembly intended when stating that a successor should be chosen at the next general election that the person so chosen should succeed the person appointed by the ordinary to hold office until the next general election.
I am frank to say that I am not familiar with the procedure which should be followed but I believe that it will be necessary to have two separate listings on the ballot, one for the unexpired term and one for the new term. I do not believe that it would be proper for candidates to be voted upon for both the unexpired term and the new term together. I know of no statute governing this particular situation. We have, of course, statutes governing special elections but I believe that you will find that they throw no light on this particular situation.
Section 34-1914 of the Annotated Code of Georgia provides that all candidates for nomination for county offices shall qualify as candidates in accordance with the rules of the party calling the primary not later than thirty days previous to holding such primary. That section further states, however, that special primary elections to fill vacancies are exempted from the provisions thereof. I am of the opinion that the election for the unexpired term would fall within that exception but that the election for the new term would not.

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Therefore, it would seem that a primary could be held for the purpose of nominating persons to fill the unexpired term.
The Soldiers' Ballot Law, codified as Chapter 34-36 of the Annotated Code, while stating that its purpbse is to make provision for Georgia men and women in the military service of the United States to participate in county, State and national elections and in party primaries, actually seems to overlook purely county primaries. You will note that numbered Paragraph 2 of Section 34-3608 makes no mention of a county office nor does Section 34-3613. It thus seems to follow that this statute would not prohibit the holding of a primary in the instant situation. I wish to call your attention, however, to that portion of numbered paragraph 1 of Section 34-3608, which reads as follows:
" ... All candidates for district and county offices either by themselves or by the proper authorities of the party nominating them, shall file notice of their candidacy with the ordinary of the county at least 90 days before the general election."
The general election in 1952 will be held on November 4. Ninety days before that date is August 6. As a practical matter, it would seem that a primary is out of the question, inasmuch as it is only a few short days until August 6. Let me state, however, that this is a matter purely for the County Democratic Committee to pass on and if they desire to hold a primary under the circumstances stated herein, I know of no statute which would prevent them from so doing.
COUNTIES-Gilmer County Commissioners (Unofficial) The duties of the Gilmer County Road Commissioners in working public roads in the county are stated.
January 24, 1952 Mr. Robert L. Grant
You request information relative to the duties of the county road commissioner to work a public road in the county.
An act creating a County Commissioner of Gilmer County was passed by the General Assembly and approved February 23, 1943 (Acts of 1943, pp. 10211029), and Section 7 of said Act provides, in part, as follows:
"He is hereby authorized and empowered to open and maintain public roads and bridges and to do any and all public work of the County with either convict labor or hired labor, or with both, as is in accordance with the law and as appears to serve the best interest of the County.
"He is further authorized and empowered in building and maintaining public roads and bridges, building and repairing the public buildings of the County, and in having done any and all kinds of public work belonging to the County to have the work done by contract in such manner and in accordance with the law provided for such contracting.
"He shall appoint superintendents, guards, overseers and necessary labor and help as is necessary for operating the chaingang, in building and maintaining the public roads and bridges, and any and all public work of the County, as appears to be to the best interest of the County, having supervision over all such employees, with the power to employ and discharge the same."

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COUNTIES-Constables-Surety Bonds (Unofficial) A constable does not come under the provisions of the act of 1951, p. 741, relating to county officers posting surety bonds.
December 11, 1952 Honorable J. W. King
You ask that I advise you if a constable would be classed as a county officer. Under the decisions in the cases of Long v. State, 127 Ga. 285, and Rose v. State, 107 Ga. 703, justices of the peace and constables are state officers and their elections are general elections. It would be my unofficial and personal view that neither of these officers would come under the provisions of the act of 1951, page 741, relating to county officers posting surety bonds. Section 24-811 of the 1933 Annotated Code provides the method and manner of constables giving bond, and provides as follows: "All constables, except those thus appointed, must, before entering on the discharge of their duties, give a bond payable to the ordinary of the county, and his successors, with two good securities resident in the county, in the sum of $500, to be approved by such ordinary, which shall be by him filed in his office and recorded in a book kept for that purpose: Provided, that constables in militia districts outside of incorporated towns shall give bond for the sum of $200."
COUNTIES-Salaries-Game and fish (Unofficial) 1. The ordinary and sheriff may legally receive a salary in addition to fees, as provided by law. 2. It is illegal for any person to hunt and fish on the lands of another with or without a license, without first having obtained permission from the owner; a wild life ranger is authorized to make arrests in such cases.
December 17, 1952 Honorable James W. Adams
You ask the following questions: "(1) Can a salary, in addition to the fees, be set up in a county, by local legislation, for the office of ordinary and sheriff? "(2) In a compilation of rules and regulations pertaining to hunting and fishing, issued July 1, 1952 by the Game and Fish Commission, Chapter 4, General Provisions, it is stated 'any person who shall hunt on lands of another with or without a license, without first having obtained permission from such landlord, shall be guilty of a misdemeanor and fined-etc.' Is this the law, and if so, is a wildlife ranger authorized to make an arrest in such case." In answer to your first question, I find that the Supreme Court, in the case of Houlihan v. Sausey, 206 Ga. 1, held that a local act which substituted the salaries of the ordinary and sheriff in lieu of fees was not unconstitutional as violating Article III, Section XI, Paragraph II (Code Anno. 2-2301), or Article I, Section IV, Paragraph I (Code Anno. 2-401), of the 1945 Constitution of Georgia. The Court upheld the Act as coming under the protection of Article XI, Section II, Paragraph I (Code Anno. 2-7902) of the Constitution of Georgia 1945. The Court said on page 7 of the 206 Georgia Reports that: "It is not manifest from the foregoing rulings that the new provision, 'county officers may be on a fee basis, salary basis, or fee basis supplemented by

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salary, in such manner as may be directed by law' (Code Anno. 2-7902), which

was not contained in the Constitution of 1877, could have no other purpose than

to modify the requirement as to the uniformity of laws to the extent of allowing

the General Assembly to fix different salaries for officers in the respective

counties of this State."

'Therefore, it is my opinion that local legislation can be used to supplement

the fees of the ordinary and sheriff of a particular county by salary.

In part two of your inquiry, the section to which you refer in the book setting

out the rules and regulations of the Game and Fish Commission is codified

under Section 45-320 (Ga. Code 1933), which reads:

"Any person who shall hunt upon the lands of another with or without a

license, without first having obtained permission from such landowner, shall be

guilty of a misdemeanor and fined not less than $10 nor more than $100 and

all costs for each offense, or shall be sentenced to work on the public works not

less than five nor more than 30 days; and any one or more of these punishments

may be ordered in the discretion of the judge."

This Code section was taken from Sections 7 and 12 of an Act approved

August 21, 1911 (Ga. Laws 1911, pp. 141, 142), as amended by an Act approved

August 19,1912 (Ga. Laws 1912, pp. 116 & 117). These provisions were thoroughly

discussed in the case of Smith v. The State, 15 Ga. App. 538. The Court in that

case upheld the law and declared that the law prohibits any and all persons, with

and without a license, from hunting upon lands other than their own without

permission of the landowner. This case was cited in Baker v. The State, 19 Ga.

App. 84. The principle of the Smith case was discussed in Poulos v. The State,

49 Ga. App. 22.

The question of whether or not a wildlife ranger is authorized to make

an arrest of a person violating Section 45-302 (Ga. Code 1933) is controlled

by the opinion rendered by me to the Honorable J. C. Calhoun, Director, State

Game and Fish Commission, on February 14, 1950 (Opinions of the Attorney

General 1950-51, p. 91). In that opinion it was decided that a wildlife ranger

duly appointed as a State Game Protector can arrest anyone violating any of

the provisions of the game and fish laws of Georgia. Section 45-320 (Ga. Code

1933) is codified under the game and fish section and is a part of the game and

fish laws of Georgia.



Therefore, it is my opinion that wildlife rangers duly appointed as State

Game Protectors can arrest any person for hunting upon the lands of another

without obtaining permission from such landowner. Hunting under such condi-

tions violates Section 45-320 of the Georgia Code of 1933, which section is the

law at the present time.

COUNTIES-Surety Bonds of Public Officers (Unofficial) Under the act referred to, all but certain specified county officers are required to give surety bonds, the premiums of which must be paid by the county.
January 29, 1952 Mr. B. I. Cheney
You request interpretation and construction of an act passed by the General Assembly of Georgia in 1951 concerning the requirements of county officers to give a surety bond and the payment of the premium thereon. I first call your attention to Sections 1 and 2 of Georgia Laws 1951, page 741, which read as follows:

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SECTION 1. That an Act entitled, "An Act to make it mandatory for all county officers who are required to give bond to give a surety bond and to provide that the premiums due on such bond may be paid 'by the county fiscal authorities from county funds; to provide that this Act shall not affect any officer in office during his present term; and for other purposes," approved March 28, 1947 (Ga. Laws 1947, p. 1543), as amended by an Act approved February 25, 1949 (Ga. Laws 1949, p. 1190), is hereby amended by striking Section 1 in its entirety and inserting in lieu thereof a new Section 1 which shall read as follows:
"SECTION 1. That all county officials who are required to give an official bond are hereby required to make bond signed by some surety or guaranty company authorized to do business in this State. The premiums due on all such bonds must be paid by the county fiscal authorities out of county funds and it shall be mandatory upon the county fiscal authorities "in every county in the State of Georgia to pay the premiums due on all such bonds out of county funds. Provided however this Act shall not apply to county school superintendents' bonds."
Section 2. That this Act shall become effective January 1, 1952. You will note that the language of this act requires all county officers on and after January 1, 1952 to enter into a bond with a company doing surety bond business in Georgia, and the premiums thereon must be paid by the various counties of the State of Georgia of which said officer is an 9fficial, the only exception being the county school superintendent and the officers that are now holding office during their present term. The tax commissioner of any county in the State of Georgia is a county officer notwithstanding the fact that he does collect and handle state funds and would not be excepted but would be required to comply with the terms of this statute. Under the provisions of this act it would not apply to those county officers holding office at the time of the passage of the act. Moreover, the county authorities would not be authorized to pay premiums on bonds covering said officers, nor to reimburse such officers as may have paid the premiums themselves.
COUNTIES-Tax Assessors-Grand Juries (Unofficial) 1. A Tax Assessor is not eligible to serve as a member of the county board of education. 2. It is not legal for a grand juror to serve at two successive terms of court.
November 18, 1952 Mrs. Roy Stephens
You ask in your letter if a tax assessor can also serve as a member of a County Board of Education. Code Section 92-6907, relating to the eligibility of members of a County Board of Tax Assessors to hold other offices, provides:
"The members of the Board during the time they hold their offices and for one year thereafter, shall be ineligible to hold any State, County, or Municipal office."
Since a. member of a County Board of Education is a county official, this statute would render a tax assessor ineligible to also be a member of a County Board of Education.
Code Section 89-103 provides: "No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office."

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Since a member of the Board of Tax Assessors is a county officer, and since a member of a County Board of Education is a county officer, one person could not hold both of said offices at the same time.
You also asked in your letter if it is legal for a grand juror to serve at two successive terms of court.
Code Section 59-114 is as follows: "Any juror who has served as a grand or traverse juror at any session of the Superior Courts ... shall be ineligible for duty for a juror at the next succeeding term of said Superior Court." I believe that the above Code Section answers your question, except that a grand jury can be held over to serve at another term of court, but individual jurors cannot. serve at successive terms of court as grand jurors when the grand jury has been dissolved.
COUNTIES-Compensation of Tax Assessors (Unofficial) The minimum pay of tax assessors is $3.00 per day, which may be increased by the ordinary or the commissioners of roads and revenues.
April 22, 1952 Board of Commissioners, Roads and RevenuQs, Dawson County.
I am pleased to acknowledge receipt of your letter requesting the law concerning the pay of tax assessors. I call your attention to Section 92-6908 of the Code of Georgia of 1933, Annotated, which reads as follows:
"The members of the board shall be paid as compensation for their services such an amount as may be fixed from time to time by the board of county commissioners or ordinary, as the affairs of the county may be under the jurisdiction of the one or the other: Provided, that the compensation to be paid said members shall not be less than $3 per day each, for the time they are in actual discharge of the duties required of them. The compensation of the members of said board, and such other expenses as may be necessary to be incurred in the performance of the duties of the board, shall be paid from the county treasury in the same manner as other payments by the county are made."
You will note that according to the provisions of this Code Section the minimum pay of tax assessors is $3.00 per day, however, their pay can be increased by the ordinary or commissioner of roads and revenues, taking into consideration the minimum pay of $3.00 per day and other expenses legally incurred.
COUNTIES-Tax Assessor-Eligibility (Unofficial) Members of the county board of tax assessors are not eligible to hold any other county office.
April 7, 1952 Honorable Joe Ray
You request me to advise you whether a member of the County Board of Tax Assessors would be eligible to hold another county office.
I am pleased to call your attention to what appears to be the controlling provision of law relating to your inquiry. Code Section 92-6907 (Acts 1913, pp. 123-125) provides that:
"The members of the board (Board of Tax Assessors), during the time they hold their offices and for one year thereafter, shall be ineligible to hold any

28
State, county or municipal office, but they may be reappointed to succeed themselves as members of said board."
COUNTIES-Employment of Tax Experts (Unofficial) Without express statutory authority, tax assessors are not legally authorized to employ tax experts and spend county funds therefor.
January 4, 1952 Mr. Hugh Jordan, Chairman
You ask if the Board of Tax Assessors had the legal authority to employ so called tax experts to establish current value of properties in Wayne County. I first call your attention to the case of Bagwell, Commissioner, et al v. Cash, et al, 207 Ga. p. 222, headnotes 1, 2, and 3, which read as follows:
"1. 'Powers of all public officers are defined by law, and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of a power not conferred.'
2. County boards of tax assessors are limited by law in the employment of agents. Such agents may be employed to seek out unreturned property for taxation. They may be paid a commission not exceeding 10% of the county and school tax on returned property placed on the digest 'by the efforts of said agents' ... The Board of Tax Assessors of Hall County can not delegate its duties pertaining to the equalization of property valuations for ad valorem taxation, nor can the board contract for services of the nature stipulated in the contract executed by the board.
3. The Board of Commissioners of Roads and Revenues of Hall County has neither express nor implied authority to contract with reference to any of the powers and duties of the Board of Tax Assessors of Hall County."
I especially call your attention to the last pargraph in the body of the above decision, which reads as follows:
"What we have held is simply that county tax assessors can not, with the approval of county commissioners, obligate the county to pay another, with, county funds, for performing services which the law requires the assessors to perform and for which they draw pay from the county."
According to this decision, neither the board of tax assessors nor the commissioner of roads and revenues for the county has legal authority to employ so called tax experts.
COUNTIES-Eligibility of Tax Assessor (Unofficial) The law does not require that a tax assessor own any specific amount of property within the county as a condition to holding said office, but only that said officer be a freeholder.
June 2, 1952 Honorable F. J. C. Strickland
You request information concerning the requirements for office of tax assessor.
Code Section 92-6905 of the Annotated Code of Georgia of 1933, reads as follows:
92-6905. Members of the board shall be freeholders and residents of the county, and if any member of said board shall at any time cease to be a freeholder or resident, he shall vacate his office, and the vacancy shall be filled in the

29
manner hereinbefore provided." It was held in the case of Wheldon v. Cornett, Neb., 94 N.W. 626, as follows: "The term 'freeholders,' as used in statutes requiring appraisers, etc., to be
freeholders, is not construed with the same technical strictness as when used in deeds or other instruments affecting title. The purpose of such statutes is evidently to prevent appraisements being made by those who are not themslves interested in lands, and this would seem to be accomplished if the appraiser has a substantial interest hi realty." (Vol. 17 Words & Phrases, page 662).
Since the Georgia law only requires that a tax assessor and revisor be a . freeholder and does not enumerate or stipulate the amount of property a person must own in order to qualify for such office, I am of the opinion that a person owning any real property whatsoever, located within the county in which said persons is to hold the office of tax assessor or revisor would meet with the requirements as a freeholder.
COUNTIES-Tax commissioners-fees (Unofficial) The compensation of the tax commissioners of Cook County is discussed.
October 10, 1952
Messrs. ,McCall & Griffis You request information on the following questions: "1. In light of the Act of 1933 setting the compensation of the tax com-
missioner of Cook County at 60% of fees allowed both the offices of tax collector and tax receiver prior to their abolition, is the present tax commissioner of Cook County entitled to the full 10% commissions on all collections in excess of 80% of the net digest or is he entitled only to 60% of the 10%7
"2. Does the Act of 1951 authorize the County Board of Education of Cook County to pass such a resolution referred to in said act allowing the tax commissioner of Cook County 10% commissions on all school taxes collected in excess of 80% of the net digest. If so, is the tax commissioner entitled to the full 10% commissions or only 60 o/o thereOf?"
The act of 1933 created the office of tax commissioner of Cook County and provided that the compensation of the county tax commissioner should be equal to 60% of the fees, commissions and other compensation accruing to the tax receiver and tax collector of Cook County at the time the act became effective or any fees that might legally be allowed to such officers thereafter. That portion of the 1933 act creating the office of tax commissioner which states "or that might be legally allowed to such officer thereafter" is an attempt to bind future legislatures on what they might do with reference to this matter. It is of course obvious that the Legislature of 1933 could not bind any future legislature in this or any other matter.
The act of the Legislature approved February 21, 1951 is a general law changing the compensation of the tax collectors and tax receivers in all the counties of the State of Georgia which have a population of less than 75,000. Section 3 of this Act (Ga. Laws 1951, p. 815-317) is as follows:
"Section 3. Be it further enacted by the authority aforesaid that as far as the tax collectors and tax commissioners are concerned, the rates and schedules prescribed by Section 92-5301 shall apply upon the first 90 percent of the ad valorem net digests collected by the tax collector. On all taxes collected in excess of 90 percent of the total of taxes due, according to the tax net digest, the tax collector's or tax commissioner's commission shall be for such taxes 10 percent

30
of all such collections, irrespective of the above and foregoing scheduh1 and rates; provided further, that the board of commissioners of roads and revenues or the ordinary in those counties having no board of commissioners may by appropriate resolution provide that the tax collector's or tax commissioner's commission shall be 10 percent of all taxes collected in excess of 80 percent of the total taxes due according to the net tax digest. Provided, further, that in those counties where the tax collector or tax commissioner is paid on a salary basis, the commission provided for herein shall be paid to the tax collector or tax commissioner in addition to the said salary. Provided, further, that in counties having a population of 75,000 or more according to the Federal census of 1950 or any future census where the tax collector or tax commissioner is paid on a salary basis, the commission provided for herein shall be paid into the treasury of such county."
It will be noted that the above quoted section contains the following provision: "Provided, further, that in those counties where the tax collector or tax commissioner is paid on a salary basis, the commission provided for herein shall be paid to the tax collector or tax commissioner in addition to the said salary." This provision of the law supersedes and takes precedence over the provision of your local Act of 1933 limiting the commissioner's salary to 60% of the fees.
In answer to your first question, I am of the opinion that the tax commissioner of Cook County is entitled to 60% of the commissions up to collections of 90% of the net digest and 10% commission on collections over 90% of the net digest. However, your county board of commissioners by appropriate resolution can reduce the 90% to 80%. In that case your tax commissioner would be entitled to 60% of the fees up to 80% of the net digest and in addition thereto 10% commission of the fees due on taxes collected over 80% of the tax digest.
In reply to your second question, the county board of education has no authority under the 1951 act to pass a resolution authorizing the tax commissioner to receive 10% commission on all school taxes collected in excess of 80%.
The 1951 act states that the board of commissioners of roads and revenues, or the ordinary in those counties having no board of commissioners, may by appropriate resolution provide that the tax collector's or tax commissioner's commission shall be 10 percent of ALL TAXES collected in excess of 80 percent of the total taxes due according to the net tax digest. The act makes no provision for the county board of education to pass such a resolution.
COUNTIES-Tax Commissioner-Fees (Unofficial) The Tax Commissioner of Taylor County is entitled to a 2%% commissiOn on all school taxes collected, including taxes to pay off a bonded indebtedness.
November 3, 1952 Honorable C. H. Adams
I wish to acknowledge your letter of October 24, 1952 in which you request an opinion on the following question:
"We have a school bond tax levy of four mills here in Taylor County and I have not had to deal with any school bond tax since I have been in office. I deduct 2%% of all school tax that I collect and pay this money over to the county commissioners. Now, do I do the same way on school bond monies?"
The practice by the tax collectors of this State is to deduct a commission of 2%% for the collection of school bond taxes. Section 32-1106 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Part) reads as follows:
"The county tax collector shall continue to collect unpaid county school

31
taxes formerly levied and payable under the provisions of this section, and shall be entitled to commission of 2.! o/o for collecting the same. He shall pay over to the board of education all moneys collected for the schools once a month. He shall also collect all county school taxes levied under the authority of Article VIII, Section XII, Paragraph I (section 2-7501) of the Constitution of this State, upon which collections he shall receive a commission of 2.! o/o. He shall likewise pay over to the county board of education once a month, all moneys collected under such levies. In those counties where the tax collector or tax commissioner is on a salary basis the fees herein provided for shall be collected by him and paid over to the proper fiscal authorities."
This section makes no specific reference to commissions to be paid tax collectors for the collection of school bond taxes. However, I am of the opinion that school bond taxes would be classified as school taxes and the rate for collection thereof would be 2.! o/o. The taxes collected for this purpose should be paid over to the county board of education rather than the county commissioners as is provided in the section quoted above.
The county board of education is made the trustee of all funds collected from taxes levied for the purpose of paying the principal and interest on school bonds. This provision of law is contained in the following portion of Section 32-1402 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Part):
"In any local or consolidated school district in any county where there is an outstanding bonded indebtedness created for the purpose of building schoolhouses, or equipping schoolhouses, the county board of education shall, upon the effective date of this section, become the trustee of all funds which shall have been or may be collected from taxes or received from other sources, for the purpose of retiring the principal and interest on said bonds, or for creating a sinking fund for said purpose. The county board of education is charged with the duty of disbursing said funds to the bondholders in accordance with the terms under which the bonds were issued, and the duty of constructing any buildings, acquiring any building sites, or any equipment for which the bonds were issued.... "

COUNTIES-Tax Receivers (Unofficial) It is the duty of the tax receiver to place the state valuation for motor vehicles on tax returns.

Mr. E. W. Hill

April 25, 1952

You request my opmwn as to whol!le duty it is to place the state valuation

for motor vehicles on tax returns-the tax receiver or the tax assessors.

:Section 92-4611 of the Code of Georgia of 1933 provides: "92-4611. It shall be the duty of the tax receiver-

"1. To receive all tax returns within the time and in the manner prescribed by law.
"2. To make out and perfect the three digests in writing and figures plainly, legibly, and neatly, and to properly deposit them.

"3. To give 10 days' notice in writing of the several times and places at

.which he will attend in the several militia districts of the county, for the purpose of receiving tax returns.
"4. To att&nd at such places at least three times during the period allowed for making returns.

32
"5. To post and maintain a notice showing the day or days on which he will be at the county site for such purpose.
"6. To receive tax returns at any time when a taxpayer applies to give in his returns.
"7. To embrace in his digest to the Comptroller General, the ordinary or other authority in charge of county affairs, and the tax collector, respectively, a list of all defaulters, and the amount of their taxes and the double taxes assessed against them, and of all property assessed by him which has not been returned, or other special action had in conformity to the laws.
"8. To publish at the door of the courthouse, for 30 days, lists -of all the defaulters and the amount of their double taxes.
"9. To enter upon the digests deposited with the ordinary or other authority in charge of county affairs, the county taxes levied according to law, and the rate per cent. as fixed by the ordinary or such other authority.
"10. To conform to such rules as he may be furnished with, and to obey such orders as may be given by the Comptroller General.
"11. To perform all other duties that the law requires, and which necessarily under the law appertain to his office."
And Section 92-6911 of the Gode of Georgia of 1933, Annotated provides as follows:
"92-6911. The board of county tax assessors in each county may meet at any time to receive and inspect the tax returns to be laid before them by the tax receiver as hereinbefore provided. The board shall examine all the returns of both real and personal property of each taxpayer, and if in the opinion of the board any taxpayer has omitted from his returns any property that should be returned or has failed to return any of his property at a just and fair valuation, the board shall correct such returns and shall assess and fix the just and fair valuation to be placed on the property and shall make a note thereof and attach the same to the returns.
It shall be the duty of the board to see that all taxable property within the county is assessed and returned at its just and fair valuation and that valuations as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be only his proportionate share of taxes. When any such corrections, changes or equalizations shall have been made by the board, the board shall, within a period of five days, give notice to any taxpayer of any changes made in his returns, either personally or by leaving same at his residence or place of business or by sending said notice through the United States mails to his last known place of address. In all cases where an assessment is made or return is changed or altered by authority of the county tax assessors, as herein provided, and notice is not given personally to the taxpayer, as herein provided, the notice of such assessment or of such change shall be posted in front of the courthouse door, which posted notice shall contain the name of the owner liable to taxation, if known, and a brief description of the property, if owner is unknown, together with a statement that the assessment has been made, or the return changed or altered as the case may be, and need not contain other information. It shall be the duty of the ordinary of the county to make a certificate as to the posting of such notice, which certificate signed by the ordinary shall be recorded by the board of tax assessors in a book kept for that purpose. A certified copy of such certificate of the ordinary duly authenticated by the secretary of the board, shall constitute prima facie evidence of the posting of such notice as required by law."
You will note that the tax receiver is required in taking his- returns to note

88
the evaluation placed on each item of property so returned. However, if this is not done it is the duty of the tax assessors to scan each and every tax return and place a fair evaluation of the property so returned.
From all information available to me, it seems to be the general, if not universal practice, for Tax Receivers to place the "State valuation" of motor vehicles or the value as declared by the taxpayer on the return and the Board of Assessors then performs their equalization duty.
COURTS-Constables-Contempt (Unofficial) A constable failing to pay over any money coming into his possession may be ruled for contempt either in superior court or in the justice of the peace court.
November 13, 1952 Mrs Aubin B. Fokes
I am pleased to acknowledge your letter relating to a controversy between yourself in your official capacity and a constable of your predecessor relative to the handling of moneys by the justice court officials prior to your assuming office.
Section 24-205 of the 1933 Annotated Code of Georgia, relating to when justices of the peace and constables may be ruled, provides as follows:
"Justices of the peace and constables shall be so far considered officers of the superior court as to be subject to be ruled under similar regulations as are herein provided in relation to any other officer of said court, and shall be subject to all the pains and penalties as are herein provided in case of a rule absolute against sheriffs and other officers of said court, when they, or either of them, shall refuse or neglect to collect or to pay over any money which they may have received or collected in their official capacity."
Section 24-206 of the 1933 Annotated Code of Georgia, relating to when money collected by officers may be demanded, provides:
"If any sheriff, coroner, justice of the peace, constable, clerk of the superior court, or attorney at law shall fail, upon application, to pay to the proper person or his attorney any money he may have in his hands, which he may have collected by virtue of his office, the party entitled thereto or his attorney may serve said officer with a written demand for the same; and if not then paid, for such neglect or refusal the said officer shall be compelled to pay at the rate of 20 per cent. per annum upon the sum he has in his hands, from the date of such demand, unless good cause is shown to the contrary."
Section 24-209 of the 1933 Annotated Code of Georgia, relating to the issuance of rules nis~ against officers, provides:
"The judges of the superior court, ordinaries, and justices of the peace, respectively, upon application, may grant rules nisi against all officers subject thereto, in vacation or in term time, which rules nisi shall contain a full statement of the case in which the officer is called upon to show cause, and also of the time and place of hearing; and if granted in vacation, the officer called on shall be served with a copy thereof before the sitting of the court to which it is made returnable; and if granted in term time, such service shall be perfected before the case is called for hearing."
Section 24-210 of the 1933 Annotated Code of Georgia, relating to answer to rule nisi, and subsequent proceedings, provides:
"The officer called on by rule nisi, as provided in the preceding section, shall

34
fully respond in writing to said rule, which answer shall be under oath taken at the time the answer is filed; and if the answer is not denied, the rule shall be discharged, or made absolute, according as the court may deem the answer sufficient or not. The movant of the rule may traverse the truth of such answer, in which case an issue shall be made up and tried by a jury at the same term, unless good cause of continuance be shown, which may be done once only by either party. Upon the trial of such issue the court shall discharge the rule, or make the same absolute, according as the verdict of the jury may be for or against the officer."
Section 24-814 of the 1933 Annotated Code of Georgia, relating to constables being ruled by justices courts, provides:
"Constables may be ruled by their respective justices' courts and compelled to give an account of their actings and doings, or to pay over money received or collected by them in their official capacity, under the same rules and regulations as are pursued in the superior court in relation to officers of said superior court."
You will note that under the above authorities a constable failing to pay over money may be ruled in superior court or in the justice court.
Section 24-819 of the 1933 Annotated Code of Georgia, relating to the liability of a constable for misconduct, provides as follows:
"If any constable shall fail to execute and return any process placed in his hands, or shall fail to account with and pay over to the person entitled thereto any money which he has received on any note, execution, or other paper placed in his hands as such constable, within 10 days after the money is received, the person injured by such failure may apply to the justice of the peace of the district in which the defaulting constable is acting as such, or in which he did act as such, if he has gone out of office (and if there be no justice in such district, the party injured may apply to the justice of any adjacent district), and obtain a warrant against such constable; and upon satisfactory proof of the facts, the justice to whom the application is made, may, either in term time or vacation, award judgment and execution against the constable for the full amount of money collected and withheld or which might have been collected, and the justice may also fine the constable for such default in a sum not exceeding 10 per cent. on the amount of said money being so collected or which might have been collected."
COURTS-Constables fees-Returns (Unofficial) The service of summons by an officer in justice court proceedings is a different and distinct act from the return made by such officer, and the latter is entitled to receive a fee for each of said acts.
August 21, 1952 Hon. Lee F. Burtz
You request my opinion regarding certain constable fees. Code Section 24-820 sets forth the designated fees which may legally be assessed as costs where applicable in justice court cases. Under this sction a fee of $1.00 is provided for "serving copy of summons." A further fee of $1.00 is permitted for "each return by officer." Your problem, as I understand it, is whether the "entry" constitutes a part of the service, in which event an additional fee of $1.00 for "return" would not be allowable. If the entry be construed under the Code as a separate act, then a fee of $1.00 for such "return" would be in order.

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In Clinton vs. Miller, 226 P. 2nd 487, the court defined "return" as follows: "Where summons is personally served upon a defendant by a sheriff, statement in writing of what has been done by sheriff in making said service, which sheriff is required to make, constitutes sheriff's 'return'." Also, in Frohman vs. Bonelli, 204 P. 2nd 890, we find the following definition: "A 'return' is the evidence by which the court is informed that the defendant has been given notice to appear in court." In Albright-Prior Company vs. Pacific Selling Company, 126 Ga. 498, the court held as follows: "In order for the court to obtain jurisdiction of defendant, he must not only have been served in the manner pointed out by law, but there must a legal return of such service." There are countless authorities for the definitions recited above. If you will refer to Black's law dictionary, on page 1552, you will find definitions of "return" which are substantially the same as those outlined above. It appears obvious, therefore, that the entry showing service of the summons constitutes a separate act for which, under our Code, a separate fee of $1.00 would be allowable to the constable or sheriff.
COURTS-Justices of the Peace-Copies of Code (Unofficial) A justice of the peace is entitled to receive a Code-from the state in the event his predecessor fails to turn over a Code to him.
December 10, 1952 Honorable Erwin Sibley
I am pleased to acknowledge receipt of your letter relative to the request of Mr. J. D. McDonald, of the 320th militia district of Baldwin County to obtain a 1933 Code for use in his official capacity as Justice of the Peace.
Section 24-605 of the 1933 Annotated Code provides: "Justices of the peace who have been elected or appointed since the previous session of the grand jury, shall, at the time of exhibiting their dockets as required in the preceding section, also report to the grand jury whether their predecessors in office have delivered to them the copies of the Code and Acts of the General Assembly which they have received from the State, as required by law; and if said predecessors in the office of justice of the peace have withheld or detained those books, then the grand jury shall make a special presentment against such person or persons withholding or detaining such books, under section 89-9905." I would suggest that Mr. McDonald request in writing from his predecessor the code and dockets and other papers belonging to the office of the Justice of the Peace of the 320th District of Baldwin County, and, in the event that he does not comply, that he follow the provisions of the above cited section of the code.
COURTS-Justice of the Peace-Levy and Sale (Unofficial) The laws relating to the authority of a justice of the peace in matters of levy and sale are discussed.
September 17, 1952 Honorable Ernest H. West
You ask me to give you such information as I can relative to the authority of a Justice of the Peace in the matter of levy and sale.

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Your attention is called to the provisions of Section 24-1408 of the 1933 Annotated Code of Georgia, which provides as follows:
"When cases are tried, the justices of the peace shall render judgment therein according to the law and the facts of each case, and such judgment shall be enforced by execution unless prevented by appeal or other lawful means."
Section 24-1411 of the 1933 Anotated Code of Georgia, relative to the issuance of executions, levies and sales, provides as follows:
"In all cases when no appeal lies or none is entered, a justice of the peace shall issue execution after the expiration of four days (Sundays excepted). Levy, in the case of personal property, shall be advertised 10 days before the day of sale, which advertisement shall designate the time and place of sale, give a reasonable description of the property to be sold, and be posted in three public places in the county. The sale shall be at the place of holding justice's court in his district, and between the hours of 10 o'clock A. M. and four o'clock P. M. In case the levy is upon real estate, it shall be turned over to the sheriff of the county and disposed of as directed by law."
Section 24-1412 of the 1933 Annotated Code of Georgia, relative to the time and place of constables' sales, provides as follows:
"Constables and bailiffs shall be required to sell the property of defendants in execution on the regular monthly court days of their respective districts at the place of holding such courts, after advertising the said property for 10 days prior to such sale, and any other sales on any other days shall be absolutely null and void, and vest no title to the property in the purchaser; Provided, nevertheless, that the provisions of this section shall not be construed so as to prevent the sale of property ordered to be sold by the justice of the peace, as live stock or perishable property, and likely to deteriorate in value; such sales, when made, shall be valid and binding."
Section 24-1413 of the 1933 Annotated Code of Georgia, relative to levies on real property, provides:
"No constable shall levy on any land unless there is no personal property to be found sufficient to satisfy the debt, which fact must appear by an entry on the excution to be levied by a constable of the county where such execution was issued, or where the property to be levied upon may be found: Provided, that the defendant shall have the right in all cases to point out any portion of his property in his possession he may think proper; and should he point out land to be levied upon, the above entry of 'no personal property' may be omitted."
I know of no statute which requires a constable in the discharge of his official duties to place any property that he may levy on by and under a lawful process in any particular kind of warehouse. It is the responsibility of this officer to safely keep the property levied on by him in the process in his possession and for a neglect of this duty he would be liable for any misconduct or loss occurring through any negligence on his part.
COURTS-Justice of the Peace-Peace Warrants (Unofficial) It is unlawful for a Justice of the Peace to demand payment of costs for issuing a peace warrant until said warrant has been returned to and passed upon by the Superior Court.
July 17, 1952 Honorable Charles Burgamy
This will acknowledge receipt of your letter requesting an opinion as to whether a Justice of the Peace may demand payment of costs in a peace

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warrant matter. This is to advise that the Supreme Court has passed upon this question in
the case of Levar v. The State, 103 Ga. 42, and held: "1. It is not lawful to collect any costs in a peace-warrant case until after
the same shall have been returned to and passed upon by the superior court. 2. Where a constable, by color of his office, took from another costs
alleged to be due a magistrate and to himself upon a peace warrant, before the bond required thereon had been returned to the superior court, such constable was guilty of the offense of extortion, as defined in section 298 of the Penal Code.
3. An officer thus offending can not be excused on the ground that he was ignorant of the law, for he is chargeable with a knowledge of the same, and consequently must be held criminally responsible for his act."
You ask that I give you my opinion as to whether a Justice o:f the Peace violates the law by demanding and accepting money when he issues a peace warrant. The decision in the above case states:
" ... we think, that no costs can be lawfully collected on a peace warrant until after the same has been returned to the superior court and acted upon by the presiding judge."
COURTS-Juvenile Court Act of 1951-Constitutionality (Unofficial) The Juvenile Court Act of 1951 is not unconstitutional as purporting to ursurp the jurisdiction of the Superior Court. Editor's Note: The Supreme Court has recently upheld this opinion. See Jackson v. Balkcom, 210 Ga. 412.
January 28, 1952 Honorable Ira Carlisle
You request information regarding the Juvenile Court Act of 1951. In my opinion the Juvenile Court Act (Ga. Laws 1951, p. 291) is not unconstitutional as purporting to usurp the jurisdiction of the superior court, because it seems that these two courts have concurrent jurisdiction in certain of the cases specified in the act. The Superior Court in Georgia is the court of original jurisdiction (Ga. Constitution, Art. VI, Sec. I, Pargraph I). By this paragraph certain constitutional courts are established and their jurisdictions are defined. As to criminal cases, the Superior Court has jurisdiction of all crimes and misdemeanors and the Legislature is not authorized to deny such jurisdiction to the Superior Court; however, laws may be passed setting up courts with concurrent jurisdiction. (Porter v. State, 53 Ga. 236 (1874), except in criminal cases where the offender is subjected to loss of life or confinement in the penitentiary in which cases the Superior Court is granted exclusive jurisdiction. (Ga. Constitution Art. VI, Sec. IV, Paragraph I). In construing the Juvenile Court Act of 1915 the court held: " .. the proceeding before the juvenile court was not a trial for an offense and the commitment by that court did not amount to a conviction ... " and that it was not the intent of the Legislature to deprive the superior court of its criminal jurisdiction; McCrary v. Nash. C. & St. L. Ry., 37 Ga. App. 670-674 (1927); and a juvenile court cannot adjudge a cihild guilty of a crime but can only adjudge such child a delinquent. (Williams v. Davidson, 147 Ga. 491 (1917). Although the act of 1951 superseded the Juvenile Court Act of 1915, in comparing the general tenor of the two it is evident that the act of 1915 is couched more in the terms of criminal procedure than is the act of 1951. So, it seems to follow that a pro-

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ceeding in the juvenile court, as now constituted, can not be a criminal case and the judgment may be only that the child is delinquent.
The act of 1915 has been consistently construed as not undertaking to deprive the Superior Court of its felony jurisdiction, and the decisions have intimated that if a juvenile court act did purport to usurp the criminal jurisdiction of the Superior Court, such an act would be unconstitutional as violative of Article VI, Section IV, Paragraph I of the Constitution of Georgia of 1945. Hicks v. The State, 146 Ga. 706 (1915); Mills v. The State, 56 Ga. App. 390 (1937); Thomas v. The State, 174 Ga. 654 (1932) and Johnson v. The State, 43 Ga. App. 474 (1931). It seems that if the Juvenile Court Act of 1951 did attempt to go further than the act of 1915, it would be unconstitutional. See Sec. 9 (1) Ga. Laws 1951, p. 291.
Unless certain sections in the Juvenile Court Act of 1951 (Sections 9, 10(1), 11 and 19) should admit to the construction that the act has declared that any person less than 17 years of age is conclusively presumed to be incapable of criminal intent, then it seems that the Juvenile Court Act has taken nothing away from the superior court, or any other court having concurrent jurisdiction over crimes and misdemeanors, but only provided a new and additional method of dealing with juvenile criminals and delinquents, and a minor may still be :prosecuted in superior courts and courts of concurrent jurisdiction for crimes or misdemeanors. As the act did not specifically repeal Code Sections 26-201, 26-301 and 26-306 of the 1933 Code of Georgia (wherein it is declared that a child over 14 is as a matter of law capable of criminal intent, a child between the ages of 10 and 14 may be capable of criminal intent provided it knows the difference between good and evil, and only those children below the age of 10 are conclusively presumed to be incapable of criminal intent), in my opinion the aforesaid sections of the Juvenile Court Act of 1951 are not of such definite clarity as to manifest an intent of the Legislature to change existing laws as to the ages of criminal responsibility.

COURTS- ORDINARY-Insolvent Cost Fund (Unofficial) Mter the payment of all costs, fines collected in the court of ordinary go
into an insolvent cost fund.

Honorable Charles E. Dews In your letter you ask the following questions:

November 20, 1952

"What becomes of fines on cases tried by the Ordinary after all costs are paid?

"Do they go back into the General Fund of the County or into the insolvent cost fund?"

In answer I refer you to the case of Cooper v. Lunsford, 203 Ga. 166. The Court in that case determined that an insolvent cost fund was established by the act approved February 16, 1938 (Ga. Laws 1937 through 1938, Extra Session), which grants to the ordinary the power to assess fines in highway traffic violations. The Court further cites Section 27-2902 (Ga. Code 1933), which requires that insolvent cost funds be placed in the county treasury, and cites also Section 27-2904 (Ga. Code 1933), which requires that such funds be kept separate and distinct from funds arising from other sources.
Under this authority it appears, therefore, that the fines assessed by the ordinary go into an insolvent cost fund after all costs are paid.

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COURTS-Fees in Lunacy Proceedings-(Unofficial) The purpose of the amendment to Section 49-613 of the Code was to equalize the fees to be paid to the three members of a lunacy commission.
May 9, 1952 Honorable Edgar L. Smith
You request an opinion as to the fee allowed ordinaries under an act approved February 5, 1952 (Ga. Laws 1952, p. 24), which act relates to the expenses of proceedings of lunacy commissions.
The act cited above amends Section 49-613 of the Code, which prior to the passage of the act read as follows:
"The ordinary shall draw his warrant upon the treasurer of his county for such sum or sums as shall be actually necessary or requisite to defray the expenses of trying a commission of lunacy and for carrying or conveying such insane person from such county to the Milledgeville State Hospital: Provided, the sum to be paid in each case shall not exceed $10, and actual expenses to each of said reputable physicians. The reputable person not a physician shall not receive more than $5 in each case when such insane person shall be lawfully committed to such Hospital. When females shall be committed to the Milledgeville State Hospital, they shall be accompanied thereto by a relative, female nurse or female attendant, at the expense of the county: Provided, that no money shall be drawn from the county treasury for the purposes herein set forth when the estate of such insane person shall be sufficient to defray such expenses." (Emphasis supplied)
You will note that the act struck out the part which is in heavy print above and inserted in lieu thereof the word "persons," so that Section 49-613 now reads as follows:
"The ordinary shall draw his warrant upon the treasurer of his county for such sum or sums as shall be actually necessary or requisite to defray the expenses of trying a commission of lunacy and for carrying or conveying such insane person from such county to the Milledgeville State Hospital: Provided, the sum to be paid in each case shall not exceed $10, and actual expenses to each of said reputable persons. When females shall be committee to the Milledgeville State Hospital, they shall be accompanied thereto by a relative, female nurse or female attendant, at the expense of the county: Provided, that no money shall be drawn from the county treasury for the purposes herein set forth when the estate of such insane person shall be sufficient to defray such expenses."
Therefore, it is evident that fees, as far as the ordinary and the sheriff are concerned, were not changed. The only purpose of the act, as is evidenced in the caption, was to equalize or attempt to equalize the payment of all members of the lunacy commission provided for in Section 49-604. Under the old law, the two physicians could be paid up to $10 each, plus actual expenses, whereas, the remaining member of the commission could receive no more than $5. Under the i952 Act, all the persons on the lunacy commission may be paid up to $10. This was the only change made by the 1952 act, and other fees will be just a,. they were before the passage of this act.

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COURTS-Ordinary-Oath (Unofficial) An ordinary may legally administer the oath of office to new county officers up until the time said ordinary's successor is qualified.
December 23, 1952 Honorable Marion Toms
You request that I advise you if it would be legal for an ordinary to give the oath of office to new county officers for 1953 when such ordinary leaves office on December 31, 1952.
An ordinary serves until his successor is elected and qualified. Therefore, he could exercise the duties of his office until his successor had taken the oath of office.
As you know, the ordinary usually acts under a dedimus potestatum from the Governor to perform the duties provided therein. If a dedimus potestatum directed to an ordinary is received prior to the time his successor is qualified, he would be authorized to perform the duties prescribed in said dedimus.
COURTS-Sheriff's Fees in Court of Ordinary (Unofficial) The laws relating to the fees of the sheriffs in traffic cases tried before the court of ordinary are discussed.
April 29, 1952 Honorable Robley D. Smith
The facts as set out in your first question are not sufficiently clear for me to give a definite answer as to what you may have in mind. But as I understand your problem, you refer to a situation where two or more cases are made against a defendant who is arrested for a traffic violation and brought before the ordinary in a county where arrested. In such an instance I do not believe that there is any specific rule which you can follow, unless separate warrants are sworn out for the several offenses, growing out of the circumstances of the original arrest. But if only one warrant is sworn out, and an accusation is made against the arrested party containing several counts, then in that event, it is my opinion that only one charge for the various fees for services rendered could be made by the ordinary and by the sheriff. On the other hand, if the sheriff or other arresting officer, swears. out two or more warrants against the arrested person, then in that event, separate accusations could be made, and the ordinary and the sheriff would be entitled to their respective fees for separate cases.
In answer to question number two in which you ask is a sheriff entitled to a fee for attending traffic court before the ordinary, where the defendant has not been confined to jail. I caii your attention to Code Section 24-2823, Ga. Ann. Code, which lists the fees for sheriffs in part as foiiows:
"Attending a person taken by warrant to judge's chamber, for each time, $2.50 Conducting a prisoner before judge of court to and from jaiL__________________$2.00 Services in every criminal case before judge or before judge and jury____$3.00 "Sheriffs shall be entitled to receive the fees provided in this section for all arrests in ali criminal cases or otherwise disposed of in the Superior, City and Ordinary's court." From the above, it is, therefore, my opinion that the sheriff is entitled to a fee for attending a traftic court even though the defendant has not been confined to jail, if he has been arrested by virtue of a warrant. In question number three you ask if a sheriff is entitled to a fee for attending court, arresting the defendant, and bringing him before the ordinary, when the defendant was originaiiy apprehended by the State Patrol.

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I wish to call your attention to Code Section 92A-512 of the Ga. Ann. Code which is as follows:
"The sheriff of the several counties of this State are hereby declared entitled to an arresting fee, as now provided by law, in all cases in which the sheriff or his lawful deputy arrests, assists in arresting or takes custody of any person charged with crime who has been apprehended by the State Patrol and delivered to the sheriff or his lawful deputy."
In keeping with the above statute, it would not be necessary for the sheriff to actually make the arrest in order to be entitled to the fees allowed him by law, provided he otherwise qualified under the above provisions of the statute quoted.
I further wish to quote for your information from the printed opinions of the Attorney General 1939-1941, page 625:
"If a person is arrested by the State Highway Patrol for speeding and is immediately taken befo