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 n 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. m 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) VII 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 IX 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 xm 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. XV 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. XVI 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 xvn 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 XVIII 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 XIX 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 XX 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 XXI 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 XXIII 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 XXIV 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- XXV 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. XXVI 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. XXVII 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. XXVIII 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 1 3 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. 18 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. 16 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." 18 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. 19 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. 23 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." 24 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 25 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: 26 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." 27 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. 35 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. 36 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 37 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- 38 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. 39 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. 40 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. 41 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 before the ordinary where he waives a jury trial in writing and pleads guilty I do not believe that the issuance of a warrant would be necessary. However, if such a person failed to waive a jury trial in writing or if he cannot immediately be taken before the ordinary and he is jailed until such time as a hearing of his case may be had, I believe that officers should comply with Section 27-212 of the Ga. Ann. Code of 1933 and should without delay, convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant. In such case the fee ... for issuing the warrant would be proper." COURTS-Superior Court Clerks' Retirement Fund (Unofficial) In any court in which the clerk of the superior court also serves as clerk, the latter is required to remit the sum of $1.00 from all fines and bond forfeitures. September 17, 1952 Honorable S. A. Manning You state that you are Clerk of the Superior Court and also Clerk of the City Court of Ellaville, and you ask if you should remit $1.00 from fines and bond forfeitures in the City Court to the Superior Court Clerks' Retirement Fund. Section 8 of the Act creating the Superior Court Clerks' Retirement Fund (Ga. Laws 1952, p. 238), reads in part as follows: "Section 8. In all criminal and quasi-criminal cases for violating State statutes tried in any court in Georgia of which the clerk of the superior court is clerk, wherein a fine is collected in an amount of $5.00 or more, or wherein a bond is forfeited in said amount, the sum of $1.00 for each such case each year shall be paid to the board quarterly, or at such time as the board may provide, by the collecting authority." It is my opinion that you should remit that sum to the Clerks' Retirement Fund. COURTS-Superior Court Judges-Social Security (Unofficial) The possibility of placing Superior Court Judges under the Federal Social Security Act does not appear to be legally feasible. Honorable Walter C. Hendrix January 16, 1952 Regarding proposed amendments to the Judges Emeritus Act, the question has been raised concerning the possibility of placing superior court judges under 42 the Federal Social Security Act. May I advise that I find the present situation to be as follows: The original Social Security Act appearing in the body of the U. S. Code excluded all state employees from its benefits. (U.S.C. 42-409, b, 7). However, an amendment to the act passed in 1950 and appearing as 42-418 of the 1951 Supplement to the U. S. Code Annotated allows states to contract with the Federal Security Administrator for placing employees of such states and their political subdivisions under Social Security. Pursuant to this amendment, the General Assembly enacted a law at the 1951 Session authorizing employees of counties and municipalities of this state to enter into such contracts with the Federal Security Administrator through the State Employees Retirement System, the state agency charged with administration of this law in addition to its duties of administering state retirement laws. (Georgia Laws, 1951, p. 457). No provision is made in this act for state employees. Thus, an act might be passed authorizing such contracts for state employees as well, and such an aat would, of course, include superior court judges. However, if judges chose to come under Social Security by virtue of such an act, they would first have to give up their retirement under the Judges Emeritus Act, for the act of Congress cited above, passed August 28, 1950, 64 Stat. 514, codified as 42-418(d) of the 1951 Supplement to the U. S. Code Annotated, provides: "No agreement with any state may be made applicable (either in the original agreement or by any modification thereof) to any service performed by employees as members of any coverage group in positions covered by a retirement system on the date such agreement is made applicable to such coverage group." Thus, no state employee now under a retirement system is eligible to come under Social Security. Furthermore, there is no authority under the state Constitution for the state to make "employer's contributions" to the Federal Government for its employees who would come within the act. Judge Byars stated that he had been advised that he could pay the entire 3o/o contribution and come within the act. There is some doubt in my mind about this, for my impression is that such a method is allowed only where persons are self-employed. Superior court judges are, of course, not self-employed within the meaning of the act, for U.S.C.A. (Supp.) 42-411(c) (1) expressly excludes "the performance of the functions of a public office". Finally, Judge Carpenter showed us an article appearing in the October, 1951, issue of the Journal of the American Judicature Society, Vol. 35, p. 78, which stated that Wisconsin had brought its judges within the Social Security Act and that "as a result the Wisconsin judges will receive a pension from the state supplemented by Federal Social Security." This article was written by Mr. E. H. Hallows of the Milwaukee Bar, and I feel sure that he must have authority for what he says to be the Wisconsin law. However, in reading the Wisconsin Act in question (Laws of Wisconsin, 1951, Chapter 60, Section 2, subsection 8), I find that the Act itself states: "Every state employee and state officer while employed in any position which is not included under any retirement system established by statute shall be included under the agreement authorized ...". Perhaps we might contact Mr. Hallows and ask him to show us how he reached his conclusion, which seems to be contradictory to the Wisconsin statute. Unless he can point out a method of reaching such a result, I am afraid that there is no way by which Superior Court Judges can now come under Social Security without giving up their state retirement pay. By way of summation, the obstacles seem to be: (1) Section 42-418(d) of 1951 Supp. to U.S.C.A. 43 (2) No constitutional authority for state expenditure of funds. (3) No statutory authority for Employees Retirement System to contract with the Federal Security Administrator for coverage. COURTS-Supreme Court Judges Emeritus Act The act of 1952 amending the original act of 1937 creating the office of Chief Justice Emeritus and Associate Justice Emeritus of the Supreme Court contains a typographical error wherein reference is made to the office of Associate Chief Justice Emeritus. This error is so obvious that under the principles stated the legislative intention could legally be carried out by ignoring the word "Chief Justice" where used in conjunction with the word "Associate" and the State Treasurer would, therefore, be legally authorized to pay the retirement benefits provided by the 1952 amendment to the Associate Justices Emeritus. March 10, 1952 Honorable George B. Hamilton You request my official opinion as to whether you are authorized to pay the Chief Justice Emeritus and the Associate Justice Emeritus compensations and allowances equal to two-thirds of the compensation and allowances provided by law for the Chief Justice and Associate Justices of the Supreme Court for the current year and thereafter, by virtue of Senate Bill No. 346 passed at the 1952 General Assembly of Georgia, which is an act amending the original 1937 act creating the office of Chief Justice Emeritus and Associate Justice Emeritus of the Supreme Court. (Ga. Laws 1937, p. 1101). There seems to be no problem regarding the payment of the Chief Justice Emeritus. Section 1 of Senate Bill 346 amends Section 1 of the 1937 act, as amended, by striking the last sentence which dealt with the salary of the Chief Justice Emeritus, and substituting in lieu thereof the following: "Each year the Chief Justice Emeritus shall receive compensations and allowances equal to two-thirds of the compensations and allowances provided by law for Chief Justice of the Supreme Court for that current year." That language is clear and precise and needs no interpretation. Therefore, the answer to your question as regards the payment of the Chief Justice Emeritus is in the affirmative. Section 2 of Senate Bill 346 amends the original 1937 act by striking the last sentence of Section 2, as amended, and inserting in lieu thereof the following: "Each year Associate Chief Justices Emeritus shall receive compensations and allowances equal to two-thirds of the compensations and allowances provided by law for Associate Justices Emeritus of the Supreme Court for that current year." It is evident that this language is meaningless inasmuch as there is no such office as "Associate Chief Justice Emeritus". Also, since the last sentence of the original Section 2, as amended, is stricken by the above-quoted replacement, there are no compensations and allowances provided by law for Associate Justices Emeritus because the original last sentence itself provided for the compensations and allowances for Associate Justices Emeritus. It is evident that the substituted sentence should read as follows: "Each year Associate Justices Emeritus shall receive compensations and allowances equal to two-thirds of the compensations and allowances provided by law for Associate Justices of the Supreme Court for that current year." The cardinal rule of construction in the interpretation of statutes is to ascer- tain the intent of the General Assembly in the passage of the act. See Code Section 102-102- Paragraph 9. Of course, this intent should, if possible, be deter- mined from the language of the act itself, but when to follow the words of a statute would lead to an absurdity, this constitutes sufficient authority to the interpreter to depart from them. Gillis v. Gillis, 96 Ga. 1. The Courts may construe language in connection with context, and ascertain legislative intent as derived from old law, evil, and remedy, and will not defeat intention and purpose of General Assembly by giving effect to words which would render purpose in passage of enactment futile, unenforceable, or ineffectual. Board of Tax Assessors v. Catledge, 173 Ga. 656.. In the case of Sumter County v. Allen, 193 Ga. 171, the Court held that the intention of the legislative body as it manifestly appears in a statute must be carried into effect although the precise and literal sense of terms might be different. There seems to be no doubt from a reading of the entire statute that the General Assembly intended to use the same method in computing the compensations and allowances of the Chief Justice Emeritus and the Associate Justice Emeritus. The caption of the Act reads as follows: "An Act to amend an Act approved March 30, 1937 (Ga. Laws 1937, p. 1101), and any acts amendatory thereof, which created the positions of Chief Justice Emeritus and Associate Justice Emeritus, so as to provide that such Chief Justice Emeritus and Associate Justice Emeritus shall receive annual compensations and allowances to be determined each year by compensations and allowances paid to the Chief Justice and the Associate Justices of the Supreme Court for that year; to repeal conflicting laws; and for other purposes." (Emphasis supplied) The language employed in the caption of an act can in case of ambiguity, be used to interpret the language of an act. Foster v. Brown, 199 Ga. 444, and cases cited therein. The caption shows that the Legislature intended to treat the Chief Justice Emeritus and the Associate Justice Emeritus identically as far as the procedure for determining compensations and allowances is concerned, and showed that such compensations and allowances were to be based upon the compensations and allowances paid the Chief Justice and the Associate Justices of the Supreme Court. Section 1 of the act shows that the compensations and allowances to be paid the Chief Justice Emeritus are based upon the compensations and allowances received by the Chief Justice of the Supreme Court. This is another indication of the intention of the General Assembly. In the case of Freeman v. Woodmen of the World Life Insurance Society, 200 Ga. 1, the Court held that in resolvi~g any ambiguity, the entire provisions of a statute should be construed together. Every part of a statute must be viewed in connection with the whole so as to harmonize all its parts if practicable and to give sensible and intelligent effect to each for it is not to be presumed that the Legislature intended any part of a statute to be without meaning. State Revenue Commission v. Alexander, 54 Ga. App. 295. As has been pointed out heretofore, the title of Senate Bill 346 shows that it was the intent of the General Assembly to provide for compensations and allowances for the Associate Justice Emeritus, based on the compensations and allowances for Associate Justices of the Supreme Court. The first section of the act follows the title in providing for the compensation and allowances of the Chief Justice Emeritus. Certainly, it was the intention of the General Assembly to treat the Associate Justice Emeritus the same as the Chief Justice Emeritus. 45 The last sentence of Section 2, which was substituted by Senate Bill 346, is completely meaningless as it stands and would have no force or effect whatsoever. Taking all these things into consideration, I am of the opinion that there is ample authority in the cases cited herein, and numerous others, to hold that you are authorized to pay the Associate Justice Emeritus compensations and allowances equal to two-thirds of the compensations and allowances provided by law for Associate Justices of the Supreme Court for the current year and thereafter. COURTS-Traffic Offenses (Unofficial) The various laws relating to traffic courts other than courts of justices of the peace are discussed. August 19, 1952 Mr. Dana L. Wortman, Counsel You ask for some details on the traffic court system, other than courts of Justices of the Peace, outside of cities in the state of Georgia. In 1938 the jurisdiction of the courts of ordinary, which are ordinarily courts dealing with probate matters, guardians and wards, and marriage licenses, was enlarged and extep.ded so that said courts, acting through the judge or presiding officer thereof, have the right and power to conduct trials, receive pleas of guilty, and impose fines upon defendants violating the traffic laws of th'e State of Georgia, when the penalty for the offense does not exceed the grade of a misdemeanor, and provided the defendant waives jury trial. But in those counties of the state which have city courts, the jurisdiction for the trials of traffic violations is vested in the city court rather than in the court of ordinary. I feel that I should explain that a city court, as that term is used in the State of Georgia, is not a municipal or recorder's court. The term is actually a misnomer, for the city court has countywide jurisdiction, and should be named county courts. These courts are not used in every county in the State, but only in those counties which have requested them to be established and are created by special acts of the General Assembly. So that we have some counties with the matter of handling traffic violations being vested in courts of ordinary, while in other counties the matter is vested in the city courts. Of course, the superior courts have concurrent jurisdiction in all misdemeanor cases. It is likewise a general rule that all traffic violations occurring in the incorporated limits of a municipality are tried by the recorder's or police courts, unless the matter is a misdemeanor in which case it may be tried by the recorder's or police court, provided the defendant waives a jury trial, but if he refused to so do then the matter is bound over to either the city court, or if none is existing in that county, then to the superior court. The above conclusion is codified in Code Section 92A-511 (supl.) of the 1933 Code of Ga. as follows: "The ordinaries shall have exclusive jurisdiction over all cases originating in the county, outside of municipal corporations, and the judge of recorder's court in each municipal corporation shall have exclusive jurisdiction in cases originating inside the corporate limits of municipalities. This section shall not apply to those counties having city courts or county courts." 46 CREDIT UNIONS, SMALL WANS, SALARY BUYERS-Taxation of shares Credit unions, like banking corporations, are taxable ad valorem upon their shares rather than upon the assets of said businesses; this classification by the General Assembly is not unconstitutional. Honorable W. Harvey Atkinson, Director June 12, 1952 Property & License Tax Unit The conclusion I reached in my opinion to you dated April 10, 1952 on the question of whether credit unions are exempt from the payment of intangible taxes, and whether said unions are subject to taxation under the provisions of section 25-123 and 92-2406 as banking associations, was incorrect. You will there- fore please return that opinion, and substitute this one therefor. Article VII, Section I, Paragraph IV provides in part: "All laws exempting property from taxation, other than the property herein enumerated shall be void." Section 25-123 of the Code of Georgia of 1933 provides that credit unions shall not be subject to any tax except the ad valorem imposed by the Constitution unless they are made subject to the taxing statute by express provision. This section also requires that the ad valorem taxes to be assessed against credit unions shall be assessed upon the full market value of their shares and the rate of such tax shall not exceed the rate imposed on banking corporations under the provisions of Sec. 92-2406. Section 92-2406 provides that banks and banking associations shall be taxed on the full market value of their shares. It would seem that the Legislature has classified credit unions as banks or banking associations. As a matter of fact credit unions are nothing but cooperative banks. It is my understanding that the credit unions or cooperative bank idea evolved about a century ago, and the first of such banks was established in Germany. They were of two types-one, the Schulze-Delitzch Bank served small merchants and tradesmen, while the other, Raiffeisen Banks served individuals. Credit unions, as we know them in Georgia, were patterned after the Raiffeisen Banks. Sec. 25-122, Georgia Code Annotated, subjects credit unions to the supervision of the State Superintendent of Banks. It requires them to make reports to the Superintendent semi-annually, and the Superintendent is required to examine each credit union at least annually. The Section also gives the Superintendent of Banks power to direct any credit union violating Chap. 25-1 of the Code of Georgia to discontinue its illegal methods and practices. The Superintendent is also authorized, in the event a credit union is insolvent or fails to comply with any order of the Superintendent, to take possession of the business and property and retain possession until such time as he may permit it to resume business or until such time as its affairs are finally liquidated. Sec. 92-115, Georgia Code Annotated, provides that certain intangibles are to be taxed as they were before the enactment of "this law". "This law" is the Intangibles Tax Act. The clear language of this Section evinces an unmistakable effort by the Legislature to classify shares of building and loan associations and shares of banks or banking associations as subject to ad valorem taxation as set out in Sec. 92-2406. In the case of City of Moultrie v. Moultrie Banking Co., 177 Ga. 714, 720, Mr. Chief Justice Russell speaking for the entire court said: "... the provisions of Section 11 of the Act of 1927 are not unconstitution- al, ." 47 The Section 11 referred to is Code Section 92-2406. It would seem therefore that since the constitutional section heretofore set out (Code Sec. 2-5404) does not enumerate the property of banks, then this classification and method of taxing banks is not an exemption within the meaning of the constitutional prohibition. In the case of C. & S. National Bank v. City of Atlanta, Ga., 49 Fed. (2d) 88, Judge Sibley clearly points out the loose Georgia doctrine on this subject of taxing shares. "In Georgia there has never been a full operation of the federal view of the separate property interests of corporation and stockholder in matters of taxation. The Georgia Constitution, art. 7, 2, imperatively requires that taxes shall be 'ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax.' The Supreme Court of Georgia has often declared that this means that all property subject to taxation must be so taxed, if any is. Verdery v. Summerville, 82 Ga. 138, 8 S. E. 213; City of Savannah v. Weed, 84 Ga. 683, 11 S. E. 235, 8 L. R. A. 270. Yet shares of stock in domestic corporations are never taxed, the property tax on the corporation being esteemed to be equivalent. Georgia R. R. & Banking Co. v. Wright, 125 Ga. 589, 54 S. E. 52. In Georgia, taxation of the corporation is :thought of as taxation of the shareholders. Conversely, when it comes to taxing banks, the only instance in which the shares rather than the corporate property are taxed, it is supposed that the taxation of the shareholders satisfies the Constitution as a tax of the bank's property. Indeed, the act taxing the shares (Tax Act 1927, 11) expressly refers to the surplus and undivided profits of the bank as the means of ascertaining the value of the shares, .. .'' It is my opinion that since the Constitution of the State of Georgia of 1945, Code Sec. 2-5403 confers the power upon the General Assembly " . . . to classify property including money for taxation, and to adopt different rates and different methods for different classes of property", that Code Sec. 25-123 is not an exemption but merely a classification and therefore not an unconstitutional exercise of power by the General Assembly. The result is that credit unions are in effect banking associations and subject to taxation under the provisions of Sec. 25-123 and 92-2406. CRIMES AND PUNISHMENT-Hot Pursuit (Unofficial) There is no agreement between this state and the State of Florida whereby the officers of both states may pursue fleeing motor vehicles across the state lines. April 14, 1952 Honorable Bruce Thomas This will acknowledge receipt of your letter, the first paragraph of which reads as follows: "Recently one of the members of the North Carolina State Highway Patrol had occasion to vacation in your state and happened to engage in conversation with one of the members of your state patrol. From the conversation he learned of some agreement between the States of Florida and Georgia whereby the law enforcement officers of both states are empowered to pursue fleeing motor vehicle law violators across the state line, make the arrest, and return the violator to the state where the offense occurred without the necessity of extradition. Does such an agreement exist?" I do not know of any law that would allow us to bring such offenders back to Georgia without regular extradition proceedings and I do not know of any existing agreement on the subject. 48 CRIMES & PUNISHMENT-Arrests outside municipalities (Unofficial) Municipal police officers may legally pursue a person violating state law beyond the city limits, but said officers may not legally pursue a person merely violating a city ordinance beyond said city limits. July 14, 1952 Honorable F. F. MeNeal This will acknowledge receipt of your letter, the first paragraph of which reads as follows: "I would appreciate your opinion on this case: If the city police have the authority to pursue a violator of any city ordinance outside the city limits. I have special reference to the traffic ordinances and driving under the influence of any intoxicating drink. In lots of cases the violator will get beyond the city limits before the police can catch them due to heavy traffic." Section 27-207 of the Annotated Code of Georgia of 1933, deals with officers arresting without a warrant and reads as follows: "An arrest for a crime may be made by an officer, either under a warrant, or without 'a warrant if the offense is commited in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant." Section 26-101 of the Annotated Code of Georgia of 1933, defines crime and reads as follows: "The term felony means an offense, for which the offender, on conviction, shall be liable to be punished by death or imprisonment in the penitentiary, and not otherwise. Every other crime is a misdemeanor." Section 27-211 of the Annotated Code of Georgia of 1933, provides as follows: "A private person may arrest an offender, if the offense is committed in his presence or within his immediate knowledge; and if the offense is a felony, and the offender is escaping, or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion." Section 27-212 of the Annotated Code of Georgia of 1933, reads as follows: "In every case of an arrest without warrant, the person arresting shall, without delay, convey the offender before the most convenient officer authorized to receive an affiidavit and issue a warrant. No such imprisonment shall be legal beyond a reasonable time allowed for this purpose." Driving an automobile while under the influence of intoxicating liquor or at a greater speed than 55 miles an hour is a violation of the State law and is a misdemeanor. It is my opinion that where a person is driving an automobile while under the influence of intoxicating drink or at a greater speed than 55 miles per hour in the presence of a city police officer the police officer would be authorized to pursue him beyond the city limits and make the arrest for violating a state law. I am further of the opinion that a city police officer would have no authority to go beyond the city limits and arrest a person for the violation of a city ordinance. CRIMES AND PUNISHMENT-Fines-Bad Checks (Unofficial) A judge or other court official accepting a check in payment of a fine is personally responsible therefor in the event the check is not paid. April 29, 1952 Honorable J. J. Holland In your letter you state that a check was accepted by you from a defendant 49 who had been found guilty of a traffic violation in the court of ordinary, that you accepted the check in good faith for payment of the fine, but that the defendant, who resides in Illinois, has stopped payment on the check. As a matter of practical handling it is suggested that you enter a nolle prosequi and that will clear your docket. The reason that I suggest this is because the offense is of a minor nature, judging by the fine imposed of twenty-one ($21.00) dollars, and it would cost Gordon County a great deal of money for expenses to attempt to secure the defendant from the State of Illinois. Obviously, if the offense had been one of a serious nature, I would certainly suggest that proceedings be instituted for his return to Georgia, but in a case of this nature I hestitate to recommend such a step. It is my opinion that when a sheriff accepts a check as a cash bond for a traffic violation, and that check is later forfeited as a cash bond forfeiture, and the check is either returned by the bank for insufficient funds or otherwise, then in that event there actually has been no bond posted, and thus there is no responsibility on anyone's shoulders for the act, if the cash bond was posted according to the approved policies of the court. A new bond should then be obtained. However, after a defendant has been found guilty of an offense and ordered to pay a fine by the judge with jurisdiction of the matter, then if the clerk of the court, or. sheriff, or other court officials, should take a check from the convicted defendant and release him, and such check is returned for insufficient funds, or otherwise, then in my opinion technically the officer who accepted the check is personally responsible for the payment of same. CRIMES AND PUNISHMENT-Pistols (Unofficial) A license must be obtained for the carrying of a pistol in this state. July 30, 1952 Mr. Gerry J. Allen You state that you have purchased a .22 caliber target pistol and you inquire if there are any state or federal regulations that will prevent you from carrying this gun with you on hunting and fishing trips, since it would be carried in a holster and in plain view of the public. I quote you the following Code Section 26-5103 of the 1933 Annotated Code of Georgia, which reads as follows: "It shall be unlawful for any person to have or carry about his person or to have in his manual possession outside of his own home or place of business any pistol or revolver without first taking out a license from the ordinary of the county in which the party resides: Provided, that nothing in this law shall be construed to alter, affect, or amend any laws now in force relative to carrying of concealed weaponson or about one's person: and Provided further, that this law shall not apply to sheriffs, deputy sheriffs, marshals, or other arresting officers of this State or the United States, who are now allowed, by law, to carry revolvers; nor to any of the militia while in service or upon duty; nor to any students of military colleges or schools when they are in the discharge of their duty at such colleges." 50 CRIMES AND PUNISHMENT-Carrying Pistol (Unofficial) 1. A person having a pistol on the seat of his car is not in the possession of said pistol in the intent of the criminal law. 2. The same applies where the pistol was in the glove compartment. 3. The fact that a person having a license to carry a pistol is found in an intoxicated condition with said pistol would not automatically void said license. Honorable C. S. McMillan December 16, 1952 This will acknowledge receipt of your letter making inquiry involving the following questions: 1. When a person is arrested in your city and you find a pistol on the seat of his car in reach of the person arrested, do you have a right to make a case against him for unlawful possession of a gun? 2. In case the pistol was in the glove compartment, do you have the right to take the gun? Can you in your city, or rather town court, take or confiscate the gun? 3. If a person is arrested in a drunken condition and has a pistol on his person not concealed and he has a license to carry a pistol, does his drunken condition nullify or void his license right then? Code Section 26-5103 deals with carrying a pistol without a license and reads as follows: "It shall be unlawful for any person to have or carry about his person or to have in his manual possession outside of his own home or place of business any pistol or revolver without first taking out a license from the ordinary of the county in which the party resides: Provided, that nothing in this law shall be construed to alter, affect, or amend any laws now in force relative to carrying of concealed weapons on or about one's person: and Provided further, that this law shall not apply to sheriffs, deputy sheriffs, marshals, or other arresting officers of this State or the United States, who are now allowed, by law, to carry revolvers; nor to any of the militia while in service or upon duty; nor to any students of military colleges or schools when they are in the discharge of their duty at such colleges." In the case of Hayes v. The State, 28 Ga. App., p. 67, headnote No. 1 holds as follows: "Broyles, C. J. It was not a violation of the act of 1910, penalizing the carrying of a pistol on or about one's person, or having a pistol in his manual possession outside of his own home or place of business (Park's Ann. Code, Vol. 6, Sec. 348 (a) ) , for the owner of a pistol, while driving a horse and buggy, to have the pistol under the seat of the buggy where it was not in contact with his hands or any other portion of his person. Under this ruling the defendant's conviction was unauthorized by the evidence, and the court erred in overruling the motion for a new trial." In answer to question 1, it is my opinion that the facts stated in this question would not authorize an accusation charging the person with unlawful possession of a pistol. Under the facts stated in your second question, it is my opinion that you do not have the authority to confiscate the pistol. In answer to question 3, it is my opinion that a person being arrested while in a drunken condition and carrying a pistol fully exposed to view, the fact that he was drunk would not automatically revoke his license. 51 CRIMES AND PUNISHMENT-Pistols-Minors (Unofficial) There is no state law prohibiting the sale of a pistol to a minor. February 21, 1952 Messrs. 0. W. Jones and Son Hardware Company You inquire whether or not there is a state or federal law prohibiting the sale of a pistol to a minor. There is no state law prohibiting the sale of a pistol to a minor. I suggest that you write the United States District Attorney of the federal court of your district and obtain information concerning Federal regulations on this matter. CRIMES AND PUNISHMENT-Traffic offenses-Jurisdiction A sheriff making an arrest for violation of traffic laws has the discretion of carrying the accused before the court of ordinary or the superior court. July 15, 1952 Honorable Herman E. Talmadge Governor of Georgia You ask for an opinion relative to the right of a sheriff to choose whether a person arrested for a misdemeanor violation of the traffic laws shall be required to make bond returnable to the superior court of the county of the offense or shall be carried before the court of ordinary for trial, if the offender requests the latter recourse. Ga. Laws 1937-1938 Ex. Sess. pp. 558, 559, which has been codified as 92-A502, is as follows: "The Court of Ordinary shall have jurisdiction to issue warrant, try cases, and impose sentence thereon in all misdemeanor cases arising under this Title, and other traffic laws of the State, in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial." And Ga. Laws 1937-1938 Ex. Sess. pp. 558, 562, which has been codified as 92A-511, is as follows: "The ordinaries shall have exclusive (under-lineation mine) jurisdiction of all cases originating in the county, outside of municipal corporations, and the judge of recorder's court in each municipal corporation shall have exclusive jurisdiction of cases originating inside the corporate limits of municipalities. This section shall not apply to those counties having city courts or county courts." From the above quoted statutes, it is clear that the court of ordinary has jurisdiction to try traffic law violations, and at first glance it would appear that the ordinary has exclusive jurisdiction to try such cases originating in the county. A strict construction of the statute would mean that the superior court would have no jurisdiction in such matters. With reference to the jurisdiction of superior courts, it is stated in part in Code Section 24-2615, to wit: "24-2615. The superior courts have authority.-1. To exercise original, exclusive, or concurrent_jurisdiction (as the case may be) of all cases, both civil and criminal, granted to them by the Constitution and laws ..." Thus in order to give a clear picture of the jurisdiction of the superior courts it is necessary to turn to the Constitution of 1945, which holds in Article VI Section IV Paragraph 1, as follows: "The Superior Courts shall have exclusive jurisdiction ... in criminal cases where the offender is subjected to loss of life or confinement in the penitentiary ." 52 The superior courts by reason of the above constitutional provisiOn have exclusive jurisdiction of felony cases, and it would seem that there is no reason why the General Assembly could not divest the superior courts of jurisdiction of misdemeanor cases and place such jurisdiction for traffic violations exclusively in other courts such as the courts of ordinary. But in spite of the apparent logic of the above conclusion, the Court of Appeals has ruled to the contrary. In the case of Smith v. The State 62 Ga. App. 733, the Court held as follows: "Ga. Laws Ex. Sess. 1937-38, pp. 558-566 did not take from the superior courts jurisdiction to try misdemeanor violations of traffic laws, and vest such jurisdiction in courts of ordinary or municipal courts, as the case might be, exclusively as against the superior courts; and a defendant has no right to demand that an indictment returned by a grand jury be abated because he has not first been tried in a court of ordinary . . . Superior Courts of this State have con-current jurisdiction with all inferior courts of misdemeanors." I believe that the above decision is an answer to the question which you have propounded. From the above case, it can be seen that no one can demand a trial in the court of ordinary for a misdemeanor violation of traffic laws, when the case has been made returnable to the superior court by the sheriff of the involved county. The sheriff in such instances has a discretion as to which court the case shall be returnable. Because of the speedy nature of the trial (and less expensive to the county) by the courts of ordinary, it seems that as a general rule these types of cases should be tried in such courts rather than the superior courts, and I believe that that is the general practice in the state, in those counties which do not have a city or county court. But there are occasions when misdemeanor violations of the traffic laws are of such unusual and serious nature, due to the circumstances as involved, that the sheriffs would be justified in their discretion in having the offender bonded to the superior court for grand jury investigation. Likewise, frequently, particularly in those counties having city or county courts, where the grand jury has returned an indictment against a misdemeanor violator of a traffic law, that the superior court judge declines to take jurisdiction and remands the case for trial and determination to the city or county court of that respective county. It is my opinion that a sheriff has the discretionary right to choose, from the circumstances involved in the offense, whether a misdemeanor violator of the traffic laws shall be required to give bond returnable to the superior court or shall be taken before the court of ordinary upon his request. DIVORCE AND ALIMONY-Finality of Decree (Unofficial) A decree of divorce is effective 30 days after it is rendered unless proceedings have been instituted to have said decree set aside or modified. February 26, 1952 Captain Theodore A. Kelly Your letter concerning the effective date of a divorce decree, has been received in this office. Section 30-101 of the 1933 Code of Georgia, as amended by Georgia Laws 1946, p. 90, provides as follows: "Total divorces in proper cases may be granted by the Superior Court. Unless an issuable defense is filed, or a jury trial demanded in writing by either 53 party or on before the call of the case for trial, the Judge shall hear and determine all issues of law and fact in all petitions for divorce and permanent alimony, and any o.ther issues made in the pleadings. If a verdict or judgment is rendered authorizing the grant of a total divorce or for total divorce and permanent alimony, the verdict or judgment shall not become final for a period of thirty days. At the expiration of said period of 30 days the said verdict or judgment, either or both, shall become of full force and effect, unless some person at interest shall file in said court a written petition setting forth good and sufficient grounds for the modification or setting aside of such verdict or judgment. If such a petition is filed it shall be decided by the Judge unless a jury trial of the issues raised thereby is demanded by any party." This Code Section has been interpreted by the Georgia Supreme Court and Allison v. Allison, 205 Georgia, page 233 to mean that- " .. a verdict or judgment, either or both, becomes of full force and effect after the expiration of thirty days from the rendition thereof unless some person at interest during that period files in the trial court a written petition setting forth good and sufficient grounds why it should be modified or set aside." In your letter you stated "that the decree was effective 27 November, 1951, and that the thirty day waiting period expired on 28 December 1951." Assuming that this decree was rendered on the '27th of November, 1951, then it is clear that it became final on the 28th of December, 1951, which is 30 days after the rendition of the decree. For your information, I am enclosing herewith a summary of the Georgia Divorce Laws which has been prepared by this Department. EDUCATION-Allocation of Pupils (Unofficial) A person dissatisfied with any ruling of a local board of education in the allocation of pupils has the right of appeal to the state board of education. September 9, 1952 Mr. V. P. Willis You request information relative to your child being sent to a school different from that which you desire him to attend. Under Section 32-909 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, county boards of education have broad discretionary powers in conducting the school affairs of the county. Section 32-910 of the 1933 Annotated Code, 1951 Cumulative Pocket Part, provides that a county board of education is constituted as a special tribunal for the hearing and determination of local controversies in reference to the administration of the school laws. This last cited provision of the Code allows a citizen of the state the right to appear before the county board of education and request a hearing on any matter which affects the interest of children. If he should be dissatisfied with the decision of the county board, he has the right to appeal the decision of the county board to the State Board of Education for a hearing upon the facts brought out before the county board. These facts are reviewed by the State Board of Education and a written decision made which is final and binding upon the county board of education. 54 EDUCATION-Procedure on Appeal to State Board On appeal, the State Board of Education is limited to a review of the evidence and testimony produced at the hearing before the county board and brought up as a transcript. July 21, 1952 Dr. M. D. Collins ;.Hate Superintendent of Schools This will acknowledge receipt of your letter together with a letter from Mr. Ray Bagley, Superintendent of the Murray County Schools, transmitting to you a purported appeal from a decision of the Murray County Board of Education to the State Board of Education. I have reviewed this correspondence and do not find the purported appeal in proper form for the following reasons: 1. There is no decision therein made by the Murray County Board of Education as provided under Section 32-910 of the Code of Georgia. 2. There is no testimony as heard by the County Board, or as agreed on by the parties to the controversy, as provided in Section 32-910 of the Code of Georgia. 3. The rules and regulations of the State Department of Education, as contained in Georgia School Laws, published by the State Department of Education, on pp. 101, 102 and 103 thereof, provides in part as follows: "1. In all controversies heard by a County Board of Education the County Board should require the parties to the controversy to reduce their contentions to writing. The written contentions should be filed with the County Superintendent of Schools and should be entered on the minutes of the County Board of Education.... " 4. The Board (County) shall proceed with the hearing on the day set. All documentary evidence, or certified copies thereof, produced on the trial shall be filed with the County Superintendent of Schools. All oral testimony of witnesses shall be reduced to writing and filed with the County School Superintendent. Any pertinent facts considered by the County Board shall be made a part of the record. 5. The finding and judgment of the County Board shall be recorded upon their minutes and shall be a part of the record. 6. Any dissatisfied parties interested in the controversy may appeal to the State Board of Education as provided by statute. The appeal shall be filed with the County Superintendent of Schools within ten days from the date of the decision complained of. 7. When an appeal has been filed the County Superintendent of Schools shall make out a transcript of the records to be transmitted to the State Board of Education. The transcript shall contain (a) the written contentions filed by the parties (b) all documentary evidence (c) a brief of evidence and other pertinent facts considered by the County Board (d) the notice given the parties of their waiver of notice (e) the finding or judgment of the county board. The transcript shall be certified by the County Superintendent of Schools, and by him delivered to the State Superintendent of Schools who shall file the same with the State Board of Education. In the case of Boney v. County Board of Education of Telfair County, et al, 203 Ga. 152, the Supreme Court of Georgia held, in discussing Code Section 55 32-910, in part as follows: " the law shows an intent that the State board be restricted at the hearing on appeal to the testimony previously considered by the county board. This would prohibit a de novo trial by the State Board. This is further supported by the fact that the law has given the county board wide discreptionary powers, and whether or not it has abused its discretion can be ascertained only by a consideration of the testimony which it heard and upon which its decision is based. The conclusion is in harmony with the further policy of the law to give to the local authorities as much power and responsibility as possible for the conduct of the public schools. It accords with the undeniable fact that the members of the county board, being familiar with the local conditions and circumstances, are in a better position to adjust local matters to existing conditions than the State Board, which is far removed. "The provisions of the law which specify the essentials of an appeal show that only the decisions of the county board made on disputed issues are appealable." Since there is no decision of the County Board of Education of Murray County or any transcript of the evidence of the hearing before the Murray County Board of Education, the State Board would not have jurisdiction in this matter to determine whether or not the Murray County Board of Education acted correctly in determining the location of the school house in question. EDUCATION-Bus Drivers-Compensation (Unofficial) The salary increases for school bus drivers, as provided by the act of 1952, are not retroactive. Honorable William L. Abney, Jr. April 8, 1952 This will acknowledge your letter relative to House Bill No. 723, approved February 15, 1952 (Georgia Laws 1952, p. 400-403), which is an amendment to the Minimum Foundation Program Act. You ask that I advise you whether or not school bus drivers are entitled to the salary increases as provided in the proviso's provisions of this act, starting as of September, 1951, or on and after the passage of the Act. The pertinent provision of the above-cited statute reads as follows: "Provided, however, notwithstanding any of the provisions of this Act to the contrary, that upon the passage and approval of this Act all school bus drivers ... " The above proviso is clear in stating the effective date of the provisions thereof and could not be construed to be retroactive under any circumstances. You will note, however, that this proviso is entirely separate and distinct from the schedule of minimum salaries provided elsewhere in said act, which was made contingent by the use of the following language contained therein: "This salary schedule shall be used by the State Department of Education to disburse said funds to local administrative units for the purpose of compensating bus drivers for their services and shall become effective if and when additional State funds are appropriated or otherwise made available." 56 EDUCATION-Bus Drivers-Voting (Unofficial) 1. A member of a county board of education is prohibited by law from operating facilities for school bus transportation for the county board of education. 2. A voter may only vote in the precinct in which he is a resident except in certain instances where he is permitted to vote in the courthouse precinct. December 5, 1952 Mr. John Hollingsworth I am pleased to acknowledge receipt of your letter relative to a member of the County Board of Education operating county school buses for the school system of which he is a board member. Section 32-428 of the 1933 Annotated Code of Georgia (Cumulative Pocket Part) provides, in part, as follows: "No member of the county board of education shall be financially interested in procuring and operating means or facilities for school bus transportation, or in selling school buses, school bus equipment, or school bus supplies to county boards of education." Under the above statute, a member of a county board of education would be prohibited from operating means or facilities for school bus transportation for the county board of education. You further ask, "Can one man in a district vote in two or perhaps three precincts if he has children attending the different schools in each precinct or perhaps even in two school districts?" A qualified voter can legally vote only one time in an election and that vote must be cast in the precinct of which he is a resident, except that he may, in certain instances as provided by statute, vote in the courthouse precinct. EDUCATION-Canning Plants County boards of education may not expend money in establishing canning plants for the community as a whole, but may only operate said canning plants as an educational undertaking. Honorable B. E. Thrasher, Jr. State Auditor July 16, 1952 In your letter of June 11, 1952 you request me to advise you "as to what can be construed as being a legal and proper expenditure of tax money by the County Boards of Education in connection with canning plants." You state that the problem arises "in cases establishing canning plants beyond the instructional scope and using public school money for equipping and operating canning plants for use of the community as a whole." The General Assembly of Georgia has provided for the expenditure of State funds for a general program of Vocational Education under the jurisdiction of the State Department of Education and Vocational Educational Division. However, it is obvious that this provision would not authorize the expenditure of public school funds for establishing canning plants "beyond the instructional scope" as prescribed by the proper authorities. What type of operation would be beyond the instructional scope as prescribed by the proper authorities is purely administrative since there is no legal formula for defining the bounds of educational instructions. 57 It is likewise illegal to expend public school funds for equipping and operating a canning plant for the exclusive use of the community as a whole. On the other hand there is no provision against the proper school authorities of the Vocational Educational Division equipping and operating a canning plant that would embrace participation by the community as a whole as long as the operation and participation is within the prescribed scope of educational instruction. The question of when such operations and instructions exceed the prescribed courses is a question of fact which should be determined by the proper administrative officials. EDUCATION-Condemnation of Land (Unofficial) A county board of education may legally condemn land for school purposes assuming the proceeding therefor is brought in the name of the individual members of the county board of education. April 29, 1952 Honorable James W. Bonner Pursuant to your letter relative to condemnation of land for school purposes by County Boards of Education, I have read the decision of the Supreme Court of Georgia in the case of Parker v. Board of Education of Sumter County. 209 Ga. 5. The Court in this case held: "An action cannot be maintained in a name as plaintiff which is neither that of a natural person, a partnership, nor of such artificial person as is recognized by the law as capable of suing. A proceeding commenced in such a name, there being no plaintiff, is not an action but a mere nullity, and may be dismissed at any time on motion." 'The Court pointed out that it had previously ruled to this effect in the case of Verner v. Board of Education of Haralson County, 203 Ga. 521. The Court further distinguished this case with the following language: "This Court has held that a suit by named individuals as the duly qualified and acting members of the Board of Education, brought in the official and representative capacity as such members in behalf of the Board, may be maintained." The Court cited in this connection the cases of County Board of Education of Wilcox County v. Board of Commissioners of Roads and Revenues of Wilcox County, 201 Ga. 815 and Board of Education of Long County v. Board of Education of Liberty County, 173 Ga. 203. So far as I am able to determine, the Supreme Court has never passed on Section 32-951. I see no reason why if you follow in detail the procedure as outlined by the Supreme Court above and in the cases cited why your action would not be maintainable. EDUCATION-Condemnation (Unofficial) The fact that the caption of the act of 1947 referred to (which act provides for condemnation by county boards of education) contains matter relating to approval by the State Board of Education of such proceedings is of no effect, since the body of said act does not contain any such provision. September 17, 1952 Mr. Arthur C. Farrar I am pleased to acknowledge receipt of your letter, relative to the act ap- 58 proved March 27, 1947, found on pages 1130 and 1131 of the Acts of 1947, providing that county boards of education shall have authority to condemn private property for public school purposes under the conditions enumerated therein. A careful reading of the act discloses that there are only three sections, as follows: "Section 1. That the County Boards of Education are hereby authorized and empowered to take and damage, by condemnation, private property :for public school purposes, either for public school building sites, playgrounds, athletic fields or other purposes in connection with the common schools, high schools, or any public educational program which is now or may be hereafter authorized by law. "Section 2. Be it further enacted that condemnation proceedings by the County Boards of Education as authorized by this Act shall take the form provided in Chapters 36-1 through 36-6 of the Code of Georgia of 1933, as amended. "Section 3. That all laws and parts of laws in conflict with this Act be and the same are hereby repealed." You mention the sentence in the caption of the act which reads: " ... to provide for the approval by the State Board of Education of any property or site sought to be condemned before proceedings are instituted; ... " There is nothing in the body of the bill on this subject. You will frequently find that a bill was introduced in the General Assembly covering in the caption all the matter contained in the body of the bill when introduced, however, through various amendments in its process of passage the body of the bill was altered and the caption was not changed. Therefore, when you run across a bill that contains language in the caption that is not covered in the body, it can be disregarded since only the provisions contained in the body of the bill become the law. In the drawing of your condemnation petition, you should be careful to follow the rulings of the appellate courts of this state that an action cannot be brought in the name of the county board of education but may be brought in the names of the members of the county board of education, acting in their official capacity. There is no doubt in my mind that under the proper pleadings the members of the county board of education, acting in their official capacity, may maintain a condemnation action to acquire private proper~y for public school purposes in a county under the provisions of the Act of 1947, pages 1130, 1931, and codified as Sections 32-951 and 32-952 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part. EDUCATION-Consolidation of Schools-Appeals 1. A county board of education in conducting an investigation relative to the consolidation of schools may validly base its decision on evidence presented before it, and is not restricted to acting solely on the personal information of members. 2. On appeal, the State Board of Education may not revise the action of the county board, unless a gross abuse of discretion is shown. October 10, 1952 Dr. M. D. Collins State Superintendent of Schools This will acknowledge your request for an op1mon concerning the appeal from the action of the County Board of Education of Greene County in providing 59 for the construction of a single white county high school at Greensboro. The controversy appears to relate to whether there should be two white county high schools, one at Greensboro and one at Union Point, or only one white county high school at Greensboro. The Constitution of 1945 (Art. VIII, Sec. V, Par. I) authorizes the various counties of the state to establish and maintain public schools, and provides that each county as a school district shall be "confined to the control and management of a County Board of Education." It provides how the members of the county board of education shall be chosen. Thus, under the Constitution of 1945, the county boards of education are constitutional bodies, and their members are constitutional officers. The Constitution and statutes confer broad discretionary powers upon the county boards of education in determining whether schools should or should not be consolidated, in providing for the construction of school buildings and in deciding where they shall be located. In the present case, according to the record on appeal, which accompanied your request for opinion, the Board of Education of Greene County provided for a survey of the County by committees of citizens, and certain professional personnel. The survey recommended, among other things, that the independent school system of Greensboro be abolished, and, as respects the present controversy, that one white county high school be constructed at Greensboro to serve the whole county. The record on appeal shows that on September 5, 1950, the County Board of Education voted to receive the "Greensboro City System" into the county system, and it was agreed by the City and County Boards that all school property was transferred to the County Board, reference being made to a signed agreement between the two Boards. Threafter, according to the record, at its regular meeting in March, 1952, the County Board "officially approved and adopted" the survey to which reference has been made. Prior to the April meeting, objections were filed by the Mayor and Council of Union Point, and other citizens, and a hearing requested. A hearing was accordingly held at the April meeting, and the appellants presented the "facts, information and arguments" in the record. At the April meeting and after the hearing, the Board, by a vote of 3 to 2, adhered to its former ruling. From this action, appellants appealed to the State Board of Education, and that appeal is now before the Board, along with a later appeal. In July, 1952, appellants requested a rehearing of the matter by the County Board and requested the County Board to recall the survey, and recommend two white high schools for the county, one at Union Point and one at Greensboro. The County Board granted this rehearing and reheard the matter at its August meeting. At that time "facts, information and argument," as set forth by the record, including the aforesaid survey, were submitted to the Board. Immediately after the rehearing, the Board, by a vote of 3 to 2, adhered to its former action and "did refuse to reconsider and recall said survey and did refuse to recommend two white high schools for Greene County." From the decision just mentioned, an appeal is before the State Board. In my opinion, in acting and passing upon this matter, and in making the decision from which the appeal is taken, the Board of Education of Greene County, exercised the discretion vested in it by the Constitution and Laws. 60 It is, of course, true that a public body, such as a county Board of Education, cannot delegate its discreption. This does not mean, however, that such a body may not act upon information furnished to it by others, or that in passing upon matters before it, the members may act only upon personal information. In the very nature of things such a "tribunal" may hear evidence and reach conclusions therefrom. In so doing, it necessarily exercises discretion. In fact, when the Board sits as a school court, it is expressly authorized to take testimony and summon witnesses. Code Section 32-913. It is difficult for me to discern the basis for any contention that in taking the action it did take in this case, the Board of Education of Greene County failed to exercise its discretion. Manifestly it had to do so in order to arrive at and state its conclusion, and the record contains no basis for a contention that the Board delegated its discretion to the committee making the survey. Nor does it contain anything to negative the legal presumption, which otherwise must be given controlling effect, that the Board did exercise its discretion. See, in this connection: Frank v. State, 141 Ga. 243, 247(19), 284; Savannah &c Ry. Co. v. Steinhauser, 121 Ga. 104; Virginia Lumber Co. v. Williamson Co., 55 Ga. App. 410; Seaboard Air Line Ry. Co. v. Benton, 43 Ga. App. 495, 505. Having seen that the County Board of Education exerci,sed its discretion in the matter, it remains only to determine the duty of the State Board of Education. There has been no decision of the Supreme Court as to the effect of the Constitution of 1945 upon the appellate jurisdiction of the State Board of Education in matters relating to the "control and management of county schools," as distinguished from adversary proceedings before a county board in its capacity as a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law. Boney v. Board of Education of Telfair County, 203 Ga. 152, was decided after the adoption of the Constitution of 1945. Although the particular question was not there involved and was not presented or decided, it furnishes at least a physical precedent that the appellate jurisdiction of the State Board of Education continues. Assuming that this jurisdiction does continue, it seems clear, under the decision in the Boney case, and the cases it cites ,that the discretion provided for by the law is vested in the county board, not the State Board, and that the State Board should not reverse the county board on this appeal, unless a gross abuse of discretion appears. Whether or not such an abuse of discretion does appear is a matter for decision by the State Board of Education, and not a question of law to be resolved by the Department of Law. I am returning to you herewith the record and documents furnished me with your letter of September 29, 1952. 61 EDUCATION-County Board of Education-Contracts Subject to the conditions stated, counties may legally contract with one another through their Boards of Education for the education of children of one county through the facilities of another county. March 7, 1952 Honorable M. D. Collins State Superintendent of Schools I am pleased to acknowledge your request that I furnish Honorable E. H. Goldin, Haralson County Superintendent of Schools, with an opinion as to whether or not the Haralson County Board of Education may contract over a twenty-year period with the Bremen City Board of Education and the Tallapoosa Board of Education, so as to provide for the education of those children sent from the Haralson County school systems to the two independent school systems of Bremen and Tallapoosa. The subject matter of your request is one which is purely local in nature and which should be officially passed upon by the County and City Attorneys involved since the question directly affects three local school units. Therefore, I would suggest that you forward to ,Mr. Goldin a copy of the opinion of the Supreme Court of Georgia in the case of Sheffield v. State School Building Authority, et al, which I am enclosing herewith. This opinion points out the authority of counties and municipalities to contract with one another under the provisions of Article 7, Section 6, Paragraph I of the 1945 Constitution of Georgia. Mr. Goldin may consult the County and City Attorneys involved in the light of this new decision of the Supreme Court. Mr. Goldin should also call to the attention of the City and County Attorneys the provisions of Section 32-928 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Part), which provides: "It shall be unlawful for any board of education to make any contract involving the expenditure of funds in excess of the total appropriation for the current fiscal year, provided county boards of education shall have authority to contract for the transportation of pupils for a period not to exceed four years. Any indebtedness created, contract made, or order or draft issued in violation thereof shall be void." The above Code Section should be construed in the light of the Sheffield case, supra. EDUCATION-Election of New Board of Education (Unofficial) Under the local constitutional amendment relating to Appling County, it would be the duty of the ordinary, immediately after the ratification thereof, and within the time provided by said amendment, to forthwith call an election for the purpose of electing a new county board of education which would take office immediately, prior to the expiration of the .terms of the old board. November 26, 1952 Honorable J. H. Highsmith You ask that I give you my unofficial views as to when members of the Appling County Board of Education take office, under the provisions of the proposed amendment to the Constitution contained in House Resolution 115-549 (b), as set forth in the Acts of 1952, pages 571 and 572. 62 The proposed amendment is to Article VIII, Section V, Paragraph I, of the Constitution of Georgia, and provides: "The members of the county board of education of Appling County shall be elected by the people at the same time and for the same term that other county officers of Appling County are elected and shall hold their offics until their successors are elected and qualified, and shall receive a salary of $25.00 per month which shall be paid from the school fund appropriated to the county. The County of Appling shall be and the same is hereby divided into five school districts to be known and comprised as follows: The First School District to be composed of the 583rd and 1723rd G. M. Militia Districts. The Second School District to be composed of the 1563rd and 1239th Districts, G. M. The Third School District to be composed of the 456th and 1726th Districts, G. M. The Fourth School District to be composed of the 443rd, 1394th and 1754th Districts, G. M. The Fifth School District to be composed of the 457th District, G. M. One member from each of the five districts shall be elected to serve on said board by the registered and qualified voters from the county as a whole. Within thirty days after the ratification of this amendment it shall be the duty of the Ordinary of Appling County to issue a call for an election, to be held not less than twenty nor more than thirty days thereafter for the purpose of electing by the qualified voters of each school district a member of a county board of education from that district. Should a vacancy occur in the office of any member, the ordinary shall, within twenty days, issue a call for a special election, to be held not less than twenty nor more than thirty days thereafter for a successor to be elected by the registered and qualified voters of the county. The five-member county board of education shall have the same powers and duties as the present board, and shall elect its own chairman. To be eligible to hold office as a member of the county board of education, a person shall be of good moral character, have at least a fair knowledge of the elementary branch of the English education, be favorable to the common school system, and be qualified to vote for members of the General Assembly. No publisher of school books or agent for such publisher or person who shall have a pecuniary interest in the sale of school books shall be eligible for election as a member of the county board of education." You will note that this amendment provides that the members of the County Board of Education of Appling County shall be elected by the people at the same time and for the same term. that other county officers for Appling County are elected, and shall hold their offices until their successors are elected and qualified. The amendment further divides Appling County into five school districts with boundaries as specified. It further provides that one member from each of the five districts created shall be elected by the registered and qualified voters from the county as a whole. You will also note that the amendment provides that, within thirty days after the ratification of the amendment, it shall be the duty of the Ordinary of Appling County to issue a call for an election, to be held not less than twenty nor more than thirty days after the ratification of the amendment by the people, for the purpose of electing by the qualified voters of school district, a member of the county board of education from that district. Your attention is also directed to the provision that whenever a vacancy shall occur in the office of any member, the Ordinary shall, within twenty days, issue a call for a special election to be held not less than twenty nor more than thirty days thereafter for a successor to be elected by the registered and qualified voters of the county. 63 From a careful review of the provisions of this proposed amendment to the Constitution, it would be my personal and unofficial view that it would be the duty of the Ordinary of Appling County, within thirty days after the proclamation issued by the Governor, proclaiming the ratification of this amendment, to call an election as provided therein for the purpose of electing, by the qualified voters of each school district, a member of the county board of education from that district, and that they would be entitled to take office immediately after their election has been certified, as provided by law, and would hold office until their successors are elected and qualified at the next regular election for county officers of Appling County, at which time one member from each of the five districts would be elected to serve on the county board of education by the registered and qualified voters from the county as a whole. If at any time a vacancy should occur after the election and qualification of the first members under the terms of this amendment to the Constitution, the person elected to fill such vacancy would be elected by the registered and qualified voters of the county. The date when an amendment becomes effective is cited in 1 Ga. App. 632(1). EDUCATION-County Board-Democratic Executive Committees (Unofficial) March 10, 1952 Honorable G. B. Moore I am not familiar with any statutory provision which prevents a member of a county board of education from serving on a county Democratic Executive Committee. EDUCATION-Eligibility of County Board Members The constitutional provision referred to has not superseded Code Sec. 32-903 so as to authorize a grand jury to elect more than one member of a county board of education from any one militia district. September 26, 1952 Dr. M. D. Collins State Superintendent of Schools "Does Section 2-6801 of the Georgia Constitution supersede Code Section 32-903? If not, if a grand jury should elect more than one member of the county board of education from a militia district, would these members l:le considered de facto members until their successors are elected and qualified?" I call to your attention the case of McCollum et al. v. Bass et al., 201 Ga. 537, in which the Supreme Court of Georgia held: "The provision of the Code, Section 32-90, that no two members of a county board of education shall be selected from the same militia district, was not repealed or superseded by the adoption of the Constitution of 1945." Also, your attention is called to the case of Smith et al. v. Bohler et al., 72 Ga. 546, in which the Supreme Court of Georgia held: "Although the board may have consisted in part of persons who were not free-holders, they were all de facto in office, and competent to act until rejected." Also, the. case of DeLoach et al v. Newton et al., 134 Ga. 739, in which the Supreme Court of Georgia held that trustees of schools commissioned by the Board of Education were de facto officers thereof irregularly elected. 64 EDUCATION-County Boards-Residence of Members A member of the county board of education does not become disqualified merely by moving into another militia district, unless another member of said county board also resides in said militia district, or unless an independent school system is located therein. Honorable M. D. Collins State Superintendent of Schools ____February 19, 1952 I am pleased to acknowledge your request for my opinion upon the following question: "What is the status when a member of a county board of education takes the position: 'I have moved from my original militia district to another militia dhitrict, therefore, transferring my residence, but I left my voting privileges in the militia district from which I moved.' " Section ~2-903 of the 1933 Annotated Code of Georgia, relating to the qualifications of members of county boards of education, provides in part as follows: " ... Whenever a member of the board of education moves his residence into a militia district where another member of the board resides, or into a district or municipality that has an independent local school system, the member changing his residence shall immediately cease to be on the board and the vacancy shall be filled as required by law." You will note that under the above Code Section a member of a County Board of Education must not move his residence into a militia district where another member resides. Therefore, if a member moves his residence into a militia district where there resides no other member of the county board of education, the prohibition against a member moving his residence from one militia district to another in his county under the provisions of said section would not apply. The facts stated in your letter do not give sufficient information to ascertain whether or not the member in question has actually moved into a militia district of his county where another member of the county board of education resides. In general, a vacancy in a public office is determined under the following provisions of law and decisions which have been rendered by the appellate courts of this State. Section 89-501 of the 1933 Annotated Code of Georgia provides how public offices may be vacated in this State and reads as follows: "89-501. Offices, how vacated.-All offices in the State shall be vacated- 1. Death.-By the death of the incumbent. 2. Resignation.-By resignation, when accepted. 3. Judgment.-By decision of a competent tribunal declaring the office vacant. 4. Incapacity.-By voluntary act or misfortune of the incumbent, whereby he is placed in any of the specified conditions of ineligibility to office, which shall operate from the time the fact is ascertained and declared by the proper tribunay. 5. Nonresidence.-By the incumbent ceasing to be a resident of the State, or of the county, circuit, or district for which he was elected. In the first case 65 the office shall be vacated immediately; in the latter cases, from the time the fact is judicially ascertained. 6. Failing to obtain commission or give bond.-by failing to apply for and obtain commissions or certificates, or by failing to qualify or give bond, or both, within the time prescribed by the laws and Constitution. 7. Abandonment of office.-By abandoning the office and ceasing to perform its duties, or either." In construing subsection 5 of the above cited Section 89-501 of the Code, the Court of Appeals of Georgia in the case of Bush v. The State, 10 Ga. App. 544(2) held: "The removal of an officer from the county for which he was elected or appointed, to another county in this State, does not vacate the office, until the fact has been judicially ascertained." The Court of Appeals of Georgia also held in the case of John.son v. The State, 27 Ga. App. 679 (3-c): "(c) The removal of a constable from the militia district for which he was elected or appointed to another militia district in the same county does not vacate his office until the fact has been judicially ascertained." In the cases of Christopher v. The State, 21 Ga. App. 244(2) and Bun.ch v. City of Macon, 29 Ga. App. 290 (3), the Court of Appeals of Georgia also held: The time of the vacancy is only "from the time the fact is ascertained and declared by the proper tribunal." I would suggest that further information regarding the status of the Board member in question be obtained in view of the fact that the statement which you refer to in your propounded question may have been intended to mean that the member had moved and vacated his office as a member of the county board of education and retained his voting privileges in the district. EDUCATION-Board Members-Purchases (Unofficial) The legality of sales to a county board of education, one of whose members is a stockholder in the corporation making the sale is discussed. March 18, 1952 Honorable Franklin H. Pierce You ask if it is a violation of Section 32-949 of the Code for a corporation to sell supplies to a county board of education when a member of the county board of education is a stockholder of that corporation. The question which you propound is one which must be weighed in the light of the facts of each individual corporation involved; i.e., if the total or a majority of the capital stock of a corporation is owned by a member of the county board of education, the prohibition contained in Code Section 32-949 would no doubt likely apply since the Board member could control the activities of the corporation. On the other hand, if the board member was only a minority stockholder, then it would have to be determined if such board member used any influence as a stockholder in selling supplies to the county board. 66 EDUCATION-Education of Deaf and Blind Child Outside State The State Board of Education may not legally expend money for the education of a deaf and blind child in an institution outside the State of Georgia. Dr. M. D. Collins State Superintendent of Schools March 19, 1952 You request that I advise you if the State Board of Education is within their legal responsibilities and opportunities to spend $1500 for the education of a child who is both deaf and blind in an institution outside the State of Georgia. Of course you are familiar with the general rule of law that a department of the State government only has the powers which are granted to it by the General Assembly. The General Assembly so far has seen fit to establish an Academy for the Blind and the Georgia School for the Deaf, both institutions under the control and jurisdiction of the State Department of Education. Your attention is directed to Sec~ion 35-703 of the 1933 Annotated Code of Georgia, relating to the Academy for the Blind, which provides as follows: "Any indigent blind person between the ages of seven and 25 years, who shall have given satisfactory evidence of having been a resident of this State for at least two years prior to his or her application, shall be received into the Academy, and supported and educated gratuitously to the extent the funds shall permit." You will note that there is no prohibition contained in this Code Section against the admission of a child as you refer to in your letter. However, there may be some administrative problems connected with the proper educational opportunities furnished such child although these would be administrative and not legal. Your attention is also directed to Code Section 35-805 of the 1933 Annotated Code, relative to the Georgia School for the Deaf, and you will note that what is said above in connection with the Academy for the Blind would equally apply at this institution. Please also note Acts of 1945, pages 312, 313, in which the State Board of Education is authorized under conditions specified therein to establish special courses and classes for correcting speech of deaf children. I find no statutory authority for the State Board of Education to send children beyond the borders of the state and pay tuition to institutions not a part of the system of public education of Georgia. EDUCATION-Re-employment of Servicemen (Unofficial) There are no state statutes relative to the re-employment of school teachers who have been discharged from active service in the armed forces. November 21, 1952 Captain John H. Grosvenor, Jr., USMCR I am unable to find any state statute providing for the reemployment of a school teacher by a county board of education, when such person has been discharged from active service in the armed forces. As you know, in Georgia the county boards of education have the power and authority to employ school teachers within their discretion. They are not under a tenue system. 67 EDUCATION-EMPLOYEES-LIABILITY (Unofficial) An independent school system is subject to provisions of the Workmen's Compensation laws relative to injuries sustained by employees of said system. March 7, 1952 Honorable E. A. Crudup You request my opinion on the question of the liability of an independent school system for injuries sustained by employees thereof. The Workmen's Compensation Act, as codified in Section 114-101 of the 1951 Cumulative Pocket Part of the 1933 Annotated Code of Georgia, provides: "'Employer' shall include the State of Georgia and all departments thereof, any municipal corporation within the State, and any political division thereof " The word "employee" in the Workmen's Compensation Act is defined under the same Code Section: ~ 'Employee' shall include every person in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or profession of the employer. . . . " Section 114-109 of the 1933 Annotated Code of Georgia provides: "Neither any municipal corporation within the State, nor any political subdivision of the State, nor any employee of any such corporation or subdivision, shall have the right to reject the provisions of this Title relative to payment and acceptance of compensation; and the provisions of sections 114-110 and 114-202 to 114-206 shall not apply to them." Your attention is also called to an opinion of the Attorney General found in Opinions of the Attorney General, 1948-49, page 512, in which it was held: "1. Boards of County and Independent School Systems are required to carry liability insurance on school buses covering injury to children. 2. Boards are authorized to include liability coverage of members of the public, but are not themselves liable. 3. The extent of coverage is within the discretion of the respective Boards. April 29, 1949." See also the case of Bartram v. City of Atlanta, 71 Ga. App. 313, which thoroughly deals with the question of Workmen's Compensation coverage of employees of municipalities. EDUCATION-Merger of Schools (Unofficial) The Constitution of 1945 did not affect existing independent school systems but by express language authorized their continuance; an independent school system may merge with the county system either by local constitutional amendment, or by following the statutory procedure provided by general law. May 6, 1952 Mayor Ralph L. Rhodes In your letter you ask if independent school systems in existence by virtue of local or special laws at the time of the adoption of the Constitution of 1945 are now regarded as Constitutional school systems rather than statutory school systems, and if such independent school systems may without constitutional amendment merge with the county school system under the provisions of Code Section 32-1201. 68 Code Section 2-7001 of the Code of Georgia, which is Article VIII, Section VII, Paragraph 1 of the Constitution of 1945 provides as follows: "Authority is hereby granted to municipal corporations to maintain existing independent school systems, and support the same as authorized by special or general laws, and such existing systems may add thereto colleges. No independent school system shall hereafter be established." The effect of the above constitutional provision is to authorize a municipal corporation to maintain an independent school system within the municipal corporation which already exists, but to disallow the authorities of any other municipality within the state to establish a new independent school system within the limits of the respective municipal corporation. I do not feel that the provision effects the status of the independent school systems in existence by virtue of local or special laws nor does any of the other provisions of the Constitution of 1945. Therefore, in my opinion there is no reason why an independent school system cannot merge with the county school system in any respective county under the terms and provisions of Code Section 32-1201 of the 1933 Code of Georgia. Of course, as you well know this merger may also be done by a local constitutional amendment, which procedure has been followed by several counties as shown in Georgia Laws, 1952. These local constitutional amendments usually carry a referendum provision allowing the voters of the city and county to vote on the proposed merger. But, as previously stated, there is no reason why an independent school system already existing by virtue of local or special laws cannot merge under the procedure outlined in Code Section 32-1201, for it is my opinion that this code section was not superseded or repealed by the Constitution of 1945. EDUCATION-Sale of Negro School for Blind The act of 1950 referred to below is ineffective for the purposes of authorizing the sale of the Negro Blind Academy in Macon, Georgia, and the only method whereby such property may be legally sold is for the Governor to determine that said property is unserviceable. Dr. M. D. Collins State Superintendent of Schools October 7, 1952 You advise me that at the last meeting of the State Board of Education, Mr. P. S. Barrett, Director of Vocational Rehabilitation Services of the State Department of Education, was instructed to advertise and secure bids on the property presently being used as a school for the negro blind in Macon. You request that I advise you if it is in order for Mr. Barrett to proceed at once to advertise this property and secure bids as instructed by the State Board, and to prepare other papers and information necessary for the disposal of this property. I have examined the act approved February 16, 1950, Georgia Laws 1950, page 499, which authorized the State Board of Education to dispose of the property in question, as follows: "Resolved by House of Representatives with the Senate Concurring, that the State Board of Education be hereby given the authority to sell all or part of the property on which the colored school is located, and said sale shall be in accordance with the laws pertaining to the sale of public property as provided in the Acts of 1945, pages 120-121." 69 I have reviewed the Acts of 1945, pages 120-121, and find that this act refers to the condemnation of private property by the State of Georgia and provides a method of so doing, but nowhere in this act is there any provision whereby real property of the State of Georgia can be sold under the provisions thereof. In view of the fact that the General Assembly authorized the sale of the property in question under conditions which would not authorize its sale, it would be my view that the property in question could not be advertised and sold under a non-existent procedure. I know of no other statute which would authorize the State Department of Education to dispose of real property except under the provisions of Section 91804 of the 1933 Code of Georgia, which provides that when any public property shall become unserviceable, it may be sold or otherwise disposed of by order of the proper authority. Section 91-803 of the 1933 Code of Georgia provides that the "proper authority" referred to in Section 91-804 is the Governor, for all offices of the State. The Supreme Court of Georgia, in the case of Dyer, et al v. Martin, et al, 132 Ga. 445, and in the case of Trapnall, et al v. Candler, et al, 146 Ga. 617, held that property is unserviceable when it cannot be beneficially and advantageously used under all of the circumstances. Before the property in question could be sold under the above procedure as being unserviceable to the State of Georgia, it would be necessary for the State Department of Education to present to the Governor, in writing, such facts as would convince him that the property in question could not be beneficially and advantageously used by the state under all of the circumstances. Then if the Governor in his discretion should determine that said property is unserviceable within the decisions of the Supreme Court above cited, he must issue an executive order by directing under what conditions the property is to be sold, which has heretofore included notices in newspapers of general circulation and receipt of sealed bids. Other than the above cited procedure, the only avenue would be for the General Assembly to authorize the sale of this property by proper resolution at the coming session of the General Assembly in January 1953. It is my opinion that the State Board of Education and the State Department of Education would not be authorized by sale or otherwise to dispose of real property of the State of Georgia, except through authorization by resolution at the 1953 session in January, or by executive determination in writing by the Governor of Georgia as above outlined, and that the act approved February 16, 1950, Georgia Laws 1950, page 409, would not be sufficient to authorize the State Board of Education or the State Department of Education to dispose of the property in question, for the reason that such resolution authorizes a sale under a nonexistent power. EDUCATION-Quasi-indepeUident Systems (Unofficial) A dependent school system is one which receives its allocation of state funds directly from the state, but a quasi-independent school system is one which through express statutory provision receives its funds through the county board of education. February 21, 1952 Mr. Harold E. Ward You request that I give you my opmwn as to whether or not the Dublin Schools are an independent school system or a quasi-independent school system. 70 It is my unofficial view that an independent school system is one which receives its allocation of state funds directly from the state and that a quasiindependent school system is one which through express provisions of the city charter, under which the system operates, receives its allocation of state funds through the county board of education. If the charter of the City of Dublin, under which Dublin schools operate, does not contain an express statutory provision which would authorize the Dublin schools to receive their state-allocated funds through the county board of education, then it would be an independent school system. The above expressed views are in keeping with the interpretation and customs :followed by the State Department of Education for a long number of years. EDUCATION-School Funds-Legal Services (Unofficial) There is no legal authority for a county board of education to use state school funds to pay for legal services rendered said board; as to the ex penditure of county funds for such purposes, a ruling should be obtained from the county attorney. November 5, 1952. Mr. J. 0. Smith, Chairman I am pleased to acknowledge receipt of your letter stating that the Macon County Board of Education, by a majority of the members thereof, employed Honorable S. ,M. Mathews and Mr. Garland Byrd to represent the members of the Board of Education of Macon County in a suit filed against them by certain taxpayers of Macon County. You further state that prior to the employment of these two attorneys, a majority of the County Board of Education, by resolution duly passed, authorized their employment and fixed the amount of their compensation through the trial courts for each of these attorneys. You further state .that the compensation as fixed by the County Board of Education of Macon County for these attorneys is now due, and the Macon County Board of Educations wants to pay them out of the school funds under its custody and control, and that you desire me to give you an official opinion, if the action of the County Board of Education in paying out these funds is legal. As a protection to each member of the Board of Education of Macon County against the illegal expenditure of school funds under its custody and control, I would suggest that you obtain a written official opinion from the county attorney, whose opinion would be official in such matters, or you may desire to obtain such an opinion from your employed counsel. In making these observations, I am assuming that when you refer to "school funds," you mean funds other than those involving state funds. I know of no authority, either statutory or by our appellate courts, authorizing the expenditure of state school funds, other than for purely school purposes. 71 EDUCATION-School Lunches-Weeks Forestry Funds (Unofficial) Federal funds under the Weeks Forestry Act may only be used by the states for school purposes; such funds may not be used for school lunch programs as such use is not for school purposes. January 22, 1952 Honorable Paul A. Green You requested us to draw legislation for you whereby funds received from the Federal Government by Rabun County under the Weeks Forestry Act (36 Stat. 961) could be used in the operation of a school lunch program. Section 16-500 of the United States Code, as amended, which is a portion of the Weeks Forestry Act, reads in part as follows: "Twenty-five per centum of all monies received during any fiscal year from each national forest shall be paid at the end of such year by the Secretary of the Treasury to the State in which such national forest is situated, to be expended as the State Legislature may prescribe for the benefit of the public schools and public roads of the County or Counties in which such national forest is situated. . . . " This section does not prescribe how the monies shall be divided as between the two purposes named, but leaves this to the state. However, such funds may be expended only for the benefit of the public schools and public roads of the county. (See King County, Washington vs. Seattle School District No. 1, Wash. 1923, 44 S. Ct. 127, 263 U. S. 361, 68 L. Ed. 339.) The question, therefore, is whether or not school lunch programs are included within the meaning of the phrase "for the benefit of the public schools" as used in the federal act. I have been unable to find any interpretation of this phrase by the federal government, and, therefore, rely on the interpretation placed thereon by the State of Georgia. The position of the state on this question in the past has been consistently to refuse to expand the meaning of "educational purposes" to include school lunch programs. Opinions to this effect were rendered by Attorney-General Arnall under date of April 29, 1939 and by Judge Yeomans under date of November 8, 1937, to which you might refer. The reasons for this position might be summarized as follows: Article VII, Section II, Paragraph 1 of the Constitution of 1945 authorizes the State to levy taxes "for educational purposes." Article VII, Section IV, Paragraph 1 authorizes the General Assembly to delegate to the counties power to levy taxes "for educational purposes upon property located outside of independent school systems, as provided in Article VIII of this Constitution." It is my personal opinion that the providing of school lunches for children is not included within the quoted Constitutional language. Of course, there is no court decision which I can cite for this opinion, but in view of the previous opinions rendered by this office, I would hesitate to say that "educational purposes" includes a school lunch program. Therefore, it is my opinion that funds received under the Weeks Forestry Act cannot be expended for school lunch programs, since such programs are not within the meaning of the phrase "for the benefit of the public schools and public roads" to which use the funds are restricted by the federal act itself. Thus in my opinion, no legislation could be enacted by the General Assembly at the present time whereby such use could be legally authorizd. 72 EDUCATION-Sale of School Building (Unofficial) A transaction whereby the county board of education sells a recently erected school building and at the same time buys back said building to be paid for over a period of years, so as to obtain funds with which to equip said building, is in effect a borrowing of money and unauthorized by law. Honorable Horace T. Clary October 16, 1952 You ask if a county board of education could sell a recently erected school building and at the same time buy back the same building, to be paid for over a period of years, to obtain funds with which to equip the building and other buildings in the school system. Your attention is directed to Section 32-928 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, which provides: "It shall be unlawful for any board of education to make any contract involving the expenditure of funds in excess of the total appropriation for the current fiscal year . . . Any indebtedness created, contract made, order or draft issued in violation thereof shall be void." Section 32-921 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, provides: "County boards of education of the several counties of this State shall have the power and authority whenever they deem it necessary to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their county; provided, that no board of education shall have authority under this law to borrow a sum of money greater in the aggregate than the sum which the county board of education may be entitled to receive from the state appropriation and from taxes levied for educational purposes during the year in which such loan is made." And Section 32-909 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, provides in part: "The said boards are vested with the title, care and custody of all schoolhouses or other property, with power to control the same in such manner as they may think will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the coun!ty board of education; " You will note that in Section 32-909 the county boards are authorized to sell a schoolhouse only when it has become unnecessary or illiConvenient for use as a school facility. It would appear from the facts as stated in your letter that such a purported sale and repurchase would be, in fact, the borrowing of money by a county board of education. The only authority for the borrowing of money is set forth in the above cited statutory provision. I do not believe that it could be successfully argued that a recently constructed school building is "unnecessary or inconvenient." It would be my personal and unofficial view that a county board of education would not be authorized to sell a recently erected school building and at the same time buy back the same building, to be paid for over a period of years, to obtain funds with which to equip the building and other buildings in the school system. '13 EDUCATION-School Property (Unofficial) There is no authority for school property to be used for other than school purposes. March 31, 1952 Mr. Everett F. Evans You request that I advise you if there is any statutory provision of this state authorizing the use of school property for other than school purposes. I have reviewed the statutes of this state and I am unable to find any statutory authority for the use of public school property other than for school purposes. However, it has been the general custom in the various counties of the state to use school buildings for community meetings, civic activities, elections, school recreation and other similarly allied purposes. EDUCATION-State School Building Authority (Unofficial) Local school units are authorized to contract with the State School Building Authority. February 28, 1952 Honorable Charles Rogers In response to your telephone request in regard to the authority of the local school units to contract with the State School Building Authority, under the Supreme Court decision in the case of Sheffield v. State School Building Authority, et al, 208 Ga. 574, I quote two headnotes from that decision which appear to be applicable to your question on the legality of long-term contracts: "1. The State School Building Authority Act (Ga. L. 1951, pp. 241-246) plainly forbids any attempt thereunder to obligate the State, pledge the State's faith or credit, or donate anything belonging to the State; therefore, neither the act, lease contract executed thereunder, nor the revenue bonds issued pursuant thereto offend constitutional inhibitions against State debts, donations, or pledging the faith and credit of the State. 2. The foregoing act and all proceedings thereunder conform with Art. 7, Sec. 6, Par. 1 of the Constitution of 1945 (Code, Ann., 2-5901). Therefore the debt created by the 30-year lease contract-by the terms of which the County Board of Education of Baker County obligates itself to pay the Authority yearly rentals for the school building-is one expressly authorized by the above clause of the Constitution and accord with Code (Ann.) 2-6001 of the same Constitution." As you know, that was a friendly suit we instituted in order to have the Supreme Court pass on every possible constitutional question involving the operation of the State School Building Authority, and the validity of contracts entered into by the local school units. The Court rendered a rather comprehensive decision, and gave us the green light for immediate action in our proposed construction program. EDUCATION-Election of County Superintendent (Unofficial) A person residing in a city having an independent school system is not entitled to vote in the election for the county school superintendent. December 11, 1952 Honorable Warren Akin You request that I advise you as to the law relative to the right of a person living in an incorporated city to vote in the county election for the county 74 school superintendent, when the city has a separate (independent) school system of its own. Section 32-1002 of the 1933 Annotated Code of Georgia, relative to residents of independent school systems superintendents, provides as follows: "All county superintendents of schools shall be elected by the qualified voters of their respective counties quadrenially on Tuesday after the first Monday in November, for terms of four years beginning on the first day of January following the day of election. Each shall hold office until his successor is elected and qualified: Provided, if there is in any county one or more independent school systems not under the supervision of the county superintendent, the voters of such independent system or systems shall not vote in any primary or election for the county superintendent. But this section shall not disqualify registered, qualified voters residing in the limits of a quasi-independent school district from voting in any primary or election for county superintendent of schools." (Underscoring supplied) You will note that the last paragraph in the above cited section of the Code makes a distinction relative to a "quasi-independent" school system. "Quasiindependent" school districts ate those districts which, through specific statutory provisions, receive their funds through the county school system. Contractual . agreements between the systems does not make the independent system a quasiindependent system, but, as stated above, it must be by statutory provision creating or amending the independent system. EDUCATION-Superintendent-Qualifications (Unofficial) 1. Qualifications of county school superintendents are stated. 2. A county Democratic Executive Committee may, by rules and regulations, require the filing of a certificate prior to a candidate being allowed to run in the county primary for school superintendent. Honorable G. M. Williams March 8, 1952 Replying to your letter relative to qualifications of county school superin- tendents, your attention is called to Section 32-1004 of the 1933 Annotated Code of Georgia, which provides: "Before any person shall be qualified or eligible to the office of county superintendent of schools, he shall have had at least three years' practical ex- perience in teaching, hold a first-grade high school license, or in lieu thereof shall have a diploma from a literary college or normal school, or shall have had five years' experience in the actual supervision of schools, or stand an approved examination before the State Board of Education as to his qualifications, be a person of good moral character, never convicted of any crime involving moral turpitude. The county superintendent of schools shall perform all the clerical duties which were formerly required of the county school commissioner. Before being eligible to qualify for election, candidates for the position must file with the State Board of Education a certificate showing at least one of the above qualifications. This certificate must be signed by the president of the county board of education." You will note that .the above section of the Code provides that before a person shall be eligible to qualify for election to the office of county school superintendent, he must first file with the State Board of Education a certificate showing at least one of the above qualifications. This certificate must be signed 75 by the president of the county board of education. I find no decision of the appellate courts which has construed the above section in regard to the word "election" contained th-erein, and it would be my view that this has reference to the regular election in which county officers are elected and not primaries. However, your attention is called to the provisions of Section 34-3209 of the 1933 Annotated Code of Georgia which provides: "The party authorities shall, in all matters not provided for in this Chapter, formulate rules and regulations for holding said primary election and for making returns thereof to the proper party authorities." It is my view that under the above statutory provision, a County Democratic Executive Committee could set up such rules and regulations to effectuate the intent and purpose of Section 32-1004 and require a candidate to file the certificate referred to therein with the State Board of Education before allowing such person to run in the primary election. EDUCATION-Teachers' Retirement System (Unofficial) A teacher who taught in the public schools of this state for a period of 35 years, and who has reached the age of 60 years of age is a member of the Teachers' Retirement System, notwithstanding the fact that said teacher retired prior to the effective date of the Teachers' Retirement Act. May 6, 1952 Mrs. Lionel Chavous In your letter you state that you taught school in Georgia from 1901 to 1938, that you are now retired, and that you wish to know if you are eligible under the Teachers' Retirement System to draw a pension. I wish to call your attention to a certain portion of Code Section 32-2903 of the 1933 Ga. Code (Supp.), to wit: "Any teacher now in life, who has reached the age of sixty (60), who has taught in the common schools of the State, operated by the State Department of Education, or any of the State educational institutions financed by the State of Georgia, for a period of thirty-five (35) years, and who retired from service in such schools or educational institutions prior to the time this chapter became effective shall be deemed a member of the retirement systm. Bnefits to be paid to such member shall be computed on the average earnings received by such a member for the last five years of actual service rendered in such schools and educational institutions." While you did not give enough facts for a determination of your eligibility, it would appear at first glance that from what you have stated that you are probably eligible; however, I suggest that you immediately write to the Teachers' Retirement System and inform them of your situation and obtain the necessary forms to apply. EDUCATION-Salaries of Teachers (Unofficial) In order to receive state funds, the county boards of education must not pay below the minimum salaries provided by state law. January 2, 1952 Honorable J. T. Sigman You ask the following question: "Our Board would appreciate an opinion from you as to whether or not we 76 can lower salaries, so long as we pay at least the net amount being allotted by the State Department of Education." Section 32-604a of the 1951 Cumulative Packet Part of the 1933 Annotated Code of Georgia which was codified from the Minimum Foundation Act of 1949, pages 1406-1409, p~ovides: "For the purposes of this Chapter, the several counties of this State and the various independent school systems established by law shall be the local units of administration. The superintendents and the boards of education of these respective local units shall execute the provisions of this Chapter under such rules and regulations as may be adopted by the State Board of Education. In the local units of administration, the several teachers, principals and other school employees shall be elected by the boards of education on the recommendation of the respective superintendents. Contracts for teachers, principals and other professional personnel shall be in writing, signed in duplicate by the teacher in his own behalf, and by the superintendent of schools on behalf of the board." (Underscori~g supplied.) Section 32-605a of the 1933 Annotated Code of Georgia which was codified from the Minimum Foundation Act of 1949, pages 1406-1409, provides: "The State Board of Education shall provide, by regulation, for certifying and classifying the teachers in the public schools of this State. No teacher, principal, supervisor, or superintendent other than county school superintendents, shall be employed in the public schools unless such person shall hold a certificate from the State Board of Education, certifying to his or her qualifications as such teacher, principal, supervisor, or superintendent, pursuant to the rules and regulation, for the classification of all the teachers in the public schools of this State upon the basis of academic, technical and professional training and experience, and the certificate issued to each such teacher by the State Board of Education, or pursuant to its authority, shall indicate the classificatkn of such teacher." Section 32-606a of the 1933 Annotated Code of Georgia which was codified from the Minimum Foundation Act of 1949, pages 1406-1409, provides: "The State Board of Education shall annually fix a schedule of minimum salaries which shall be paid to the teachers of the various classes prescribed by the State Board of Education, which salary schedule shall be uniform for each of the classes fixed by the State Board of Education with no differentiation being made because of subjects or grades taught. A local unit of admimstration may not pay to any teacher in its employment a salary less than the minimum salary prescribed by the State Board of Education for the class to which such teacher belongs. A local unit may supplement the salaries of any of its teachers, and in fixing the amount thereof may take into account the nature of the duties to be performed, the responsibility of the position, the experience and the individual worth of the teachers." (Underscoring supplied.) You will note that under the above cited authority a local unit of administration in order to receive state funds must pay to the teachers the minimum salary fixed by the State Board of Education. You will also note the specific language in Section 32-606a which prohibits a local unit of administra lion from paying a salary less than the minimum salary prescribed by the State Board of Education for the class to which such teacher belongs. A local unit is authorized under Section 32-606a to supplement the salaries of its teachers above and beyond the minimum salary fixed by the State Department of Education. Your attention is called to the fact that even though a teacher may be 77 rece1vmg a supplement, there would be involved the question of the contract between the local unit of administration and the teacher and as to whether or not such a contract could be breached by your hnNrd during the term of such contract. EDUCATION-Truancy, Institutions A Judge of the Superior Court or City Court or other court having jurisdiction may place a child found to be delinquent in attending school in a home or in a public or private institution; in several instances where other facilities have not been available such delinquents have been committed to one of the Georgia Training Schools. March 7, 1952 Dr. M. D. Collins State Superintendent of Schools I am pleased to acknowledge receipt of your letter inquiring as to what type of institution is referred to by Code Section 32-2115. Section 32-2115 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Part), relating to compulsory school attendance of children between 7 and 16 years of age, provides: "32-2115. Method of dealing with delinquent child absenting self from schooL-Visiting teachers and attendance officers, after written notice to parent or guardian of a child, shall report to the juvenile, superior, city, or other court having jurisdiction, any child as a delinquent who absents himself from school in violation of this Chapter. The judge o said court may place said delinquent in a home, or in a public or private institution, where school shall be provided for such child." This section of the Code is very clear in providing that a judge of the superior or city court, or other court having jurisdiction, may place a child found to be delinquent under the provisions of the act of 1945, page 343 in a home, or in a public or private institution where school shall be provided for such child. This simply means that the judge may place such delinquent child in any home or a public or private institution where school shall be provided for such child. I might point out that where there are no local facilities and it is satisfactory in the opinion of the court, in several instances delinquent girls have been committed to the Georgia Training School for Girls, in Atlanta, for the white girls; the Georgia Training School for Girls, at Macon, for negro girls; and the Boys Training School, at 1Milledgeville, for white and colored boys. All four of these institutions are public institutions and are under the control and jurisdiction of the State Department of Public Welfare and have educational facilities. Commitments to these institutions are provided for under Section 77-620 and 77-704 of the 1933 Annotated Code of Georgia, as well as under the Juvenile Court Act of 1951 (Ga. Laws 1951, p. 291). EDUCATION-Truancy Warrants (Unofficial) A visiting teacher is not authorized or required to produce warrants for truants. September 17, 1952 Mrs. Roger Wood You request that I advise you if the words "shall report" in Code Section 32-2115 of the 1933 Annotated Code of Georgia mean by warrant. 78 Section 32-2115 of the 1933 Annotated Code, 1951 Cumulative Pocket Part, as codified from the Acts of 1945, pages 343, 347, provides as follows: "Vi~;iting teachers and attendance officers, after written notice to parent or guardian of a child, shall report to the juvenile, superior, city or other court having jurisdiction, any child as a delinquent who absents himself from school in violation of this Chapter. The judge of said court may place said delinquent in a home, or in a public or private institution, where school shall be provided for such child." The above-cited Code Section is a part of the Compulsory School Attendance Act of 1945 and must be construed in connection with the act as a whole. In doing so, you will find that it provides that should any child absent himself from school in violation of the Compulsory School Attendance Act, the visiting teacher and attendance officer shall give written notice of the child's absence from school to its parent or guardian and if the school deliD!quency of the child is not corrected, thereafter such teacher and attendance officer should report the situation to the juvenile, superior, city, or other court having jurisdiction of such delinquent child who absents himself from school in violation of the act. You will note that the Code Section provides that the judge of such court may place the child in a home, or in a public or private institution where school shall be provided for such child. There is no mention of any warrant in this statute and this can be understood for the reason that the process of dealing with a delinquent child absenting himself from school is not a criminal matter. ELECTIONS-Absentee Ballots (Unofficial) A member of the armed services is eligible to register for voting in the general election to be held in November 1952 at any time prior to said election. July 29, 1952 Honorable William N. Duggan You request that I advise you if any member of the Armed Forces can reg- ister now and be eligible to vote in the General Election in November, and if so, how long can they register and still be eligible. Your attention is called to the provisions of Section 5, 6 and 7 of the Acts of 1951, pp. 656, 657 and 658, relating to absentee voting by members of the military services, in which it is provided that any member of the military, his relative, or friend, is authorized at any time to request from the tax collector or commissioner or registrars a registration card which shall be sent to the member of the military who, upon receiving and executing such card, may mail it to the tax collector or commissioner or registrar of his county, and he shall not be required to use registered mail. I am enclosing herewith a copy of this Act. You will also note the provisions of Section 7 which specifically provide that nothing contained in the present laws of Georgia as to the time that the registrars shall complete their work and file the list of registered voters shall in any way abridge the right of a member of the military to be certified by th~ registrars at any time as a registered voter. 79 ELECTIONS-Preparation of Ballot-Assistance (Unofficial) The procedure provided by law for assistance in preparing ballots for voters unable to prepare their own due to their inability to read the English language or due to physical infirmity is discussed. March 12, 1952 Dr. W. K. Smith I am pleased to acknowledge your letter relative to the procedure provided by law for assistance in preparing ballots for a voter unable to prepare his own due to inability to read the English language, or by reason of blindness, or the loss of use of his hands or other physical infirmity. The procedure provided by statute in such instances is contained in Section 34-1905 of the 1933 Annotated Code of Georgia (1951) Cumulative Pocket Part), and reads in part as follows: " .. Any voter applying to vote who shall state under oath in writing to any of the managers, which said oath may be administered by any of the managers, that by reason of his inability to read the English language, or by reason of blindness or the loss of the use of his hands or other physical infirmity, he is unable to prepare his ballot, may have the assistance of any two managers, jointly or separately, in the preparation of his ballot, or may select any freeholder of his choice to aid him in the preparation of his ballot. No voter shall at any time take or remove any ticket or ballot from the polling place. The managers shall preserve these written oaths or affidavits, and return them with the other election papers to the proper officials. (Acts 1922, p. 101; 1943, p. 290.)" The above-cited statute is crystal clear in providing that the voter as therein described may have the assistance of any two managers, jointly or separately, in the preparation of his ballot, or he may select any freeholder of his choice to aid him in the preparation of his ballot. If the voter selects a freeholder who is not a manager, then the manager would not be authorized to be present in the voting booth during the preparation of the ballot by the voter and the freeholder. Section 34-1917 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Part) provides that the above statutory provision shall be operative in every county and in all elections, and further provides that grand jury action is unnecessary. This Code Section reads as' follows: "This law (Sec. 34-1914 to 34-1916), shall apply in every county of this State, and to all elections by the people including State, district, county and municipal elections and including general, special and primary elections. The provisions of sections 34-1902 through 34-1912, providing for election supplies and equipment and the use and control thereof and for the management of elections, shall, except those parts thereof which are in conflict with the provisions of this law, also apply in every county of this State and to all elections by the people including State, district, county and municipal elections and including general, special, and primary elections. No action by any grand jury shall be necessary to make the same effective. (Acts 1941, pp. 324, 327; 1949, pp. 1291, 1292.)" 80 ELECTIONS-Ballots-Governor to Furnish It is the responsibility of the Governor to furnish ballots to the ordinaries for the general elections. July 14, 1952 Honorable Ben W. Fortson, Jr. Secretary of State You request information as to the proper party to furnish forms to the ordinary for the General Election. Ordinarily, the Secretary of State would furnish each ordinary the form of the official ballot and all blank forms and related material for the General Election by virtue of an act passed in 1946, codified in the Annotated Code as Paragraph 7 of Section 40-601, which reads as follows: "The Secretary of State shall furnish each ordinary of the State the form of official ballot, all blank forms, including tally sheets, blank lists of voters, forms of returns, certificates and directions to be used in all elections for United States Senate, Governor, electors of President and Vice President of the United States, representatives to Congress, Secretary of State, State Treasurer, Comptroller General, Attorney General, State Superintendent of Schools, Justices of the Supreme Court, Judges of the Court of Appeals, judges of the superior court, solicitor general, Public Service Commissioner, Commissioner of Labor, members of the General Assembly, and county officers. The Secretary of State shall certify to the respective ordinaries the names of all candidates for national and state offices who have qualified as such as provided in section 34-1904 and in case there are one or more persons purporting to represent the same political party or candidate it shall be the duty of the Secretary of State to determine such an issue. The ordinaries of the respective counties shall not be required to add any other names for national and state offices on the official ballot except upon crtificate of the Secretary of State." The Soldier's Ballot Law passed in 1951 and codified in the Annotated Code as Chapter 34-36 provides in Section 34-3610 as follows: "The Governor shall furnish the several ordinaries all blank forms necessary :for the general elections in sufficient time for the ordinaries to have the ballots printed at least 70 days before election day." The Soldier's Ballot Law expires January 1, 1953. The Presidential Electors Bill passed in 1952 (Ga. Laws 1952, p. 7) provides in Section 6 as follows: "The Governor shall prepare the form of ballots for the election of Presidential electors in the following manner: He shall list in separate columns on the official ballot form for the general election at which such electors are to be elected, the nominees of the various parties, made and certified as hereinbefore provided. He shall list in another separate column the names of citizens who have qualified as candidates for electors and are not nominees of any political party. Each such list of party nominees shall be printed on the ballot under a heading which shall state only that they are the nominees of their political party for Presidential electors. The name of no other candidate or person shall be printed in any such column or elsewhere on the official ballot form as a candidate for elector or as a candidate for President or Vice-President of the United States. The columns listing the names of the nominees of political parties, and the column listing the names of the other candidates who may have qualified hereunder, shall appear on the ballot separately from the columns listing the nominees of political parties, or other candidates, for State offices, including United States Senators and Members of Congress." 81 This Act stays in effect for four years. It is my opinion that by virtue of the Soldier's Ballot Law and the Presidential Electors Act, it is the duty of the Governor to furnish the ordinaries the blank forms necessary for the General Election in time for the ordinaries to have the ballots printed at least 70 days before election day. The General Election this year will be held on November 4, 1952. Seventy days before that day is August 25, 1952. ELECTIONS-Ballots (Unofficial) A person desiring to run in the general election against the Democratic nominee must run as an independent and cannot run as a member of the Democratic party. May 6, 1952 Hon. Mrs. Jessika A. Wright Carswell In your letter you state that a certain party was nominated in the County Democratic primary for the office of county commissioner, and that you now have been informed that another person desires to oppose him as a Democrat in the general election. When a person has been nominated for office by being elected in the Democratic County Primary his name goes on the ballot in the general election as a candidate for election as a member of the Democratic Party. Therefore, another person claiming to be a member of the Democratic Party could not oppose him in the general election running as a member of the Democratic Party. He would either have to be nominated by some other party, which could qualify to have its candidates named on the general election ballot, or he would have to conduct a "write-in" campaign. I specifically call your attention to Code Section 34-1904 of the 1933 Code of Georgia (Supp.) which is too lengthy for me to quote in this letter. But I suggest you study this Code Section which will give you the information which you need regarding ballots in elections other than primary elections, and which outlines the procedure that a candidate in a similar situation to the one confronting you must follow, part of which is to file a petition signed by no less than five (5) percent of the registered voters in the territory involved. ELECTIONS-Bollots (Unofficial) It is not proper for the name of an independent candidate to appear on the ballot in the column of Democratic nominees. September 9, 1952 Honorable Vance Custer In reply to your inquiry it would not be proper for the ordinary to place the name of an independent candidate for sheriff in the column of Democratic nominees. That column is restricted to nominees of the Democratic Party. Moreover, the law requires that persons desiring to become a candidate in the General Election for a local office must file their notice of intention with the ordinary of their County ninety days before the general election. If Mr. Tabb filed such notice, it is my view that he would be entitled to have his name on the ballot in a place designated as independent candidate for sheriff. If the notice was not filed with the ordinary as prescribed by law he would not be entitled to have his name on the ballot at all, and under these circumstances the only way he would receive votes would be in the write-in method in a column provided for on the ballot. 82 ELECTIONS-Ballots (Unofficial) A person voting a straight party tiqket is not required to strike the names of any independent candidates appearing on the ballots. September 10, 1952 Honorable J. A, Altman In reply to your inquiry of September 2, it is not necessary for a voter, in order to cast his ballot for all of the nominees of a particular party, after marking in the space provided for voting a straight party ticket, to strike or mark out the name of an independent candidate, shown on the ballot in the independent column. If the voter votes the straight party ticket his ballot will be counted, even though he does not strike the name of the independent candidate. ELECTIONS-Inspection of Books (Unofficial) A candidate for political office, or any other citizen, has the legal right to inspect the books and records relating to the names and addresses of persons requesting absentee ballots. September 24, 1952 Honorable A. P. Phillips You request that I advise you as to whether you would be authorized to furnish a candidate for political office with the names and addresses of persons requesting absentee ballots. Section 34-145 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, provides in part as follows: " ... lists of qualified voters, lists of disqualified persons and registration cards, shall be at all times open to the reasonable inspection of any citizen of the county, but shall not be removed for such inspection from the custody of the official in charge. . . . " Section 34-137 of the Code of Georgia, 1951 Cumulative Pocket Part, provides in part as follows: "The list of registered voters prepared by the registrars shall be open to public inspection, and any citizen of the county who is himself a registered and qualified voter shall be allowed to contest the right of registration of any !person whose name appears upon the voters' list, and upon filing a contest as to the qualifications of the voter the registrars shall notify the voter and pass upon the contest. Each challenge shall specify the grounds of the challenge, and when notice is given the voter by the registrars, a copy of such challenge shall be furnished the challenged voter at least one day before passing upon the same." Section 34-3611 of the Code, 1951 Cumulative Pocket Part, relating to the furnishing of ballots for general elections to the men and women in military service, provides in part as follows: " . . . The ordinary in furnishing the said ballot shall number same and in a permanent record book provided for the purpose he shall inscribe the number of the ballot, the name of the military voter for whose use it has been furnished, the name of the person requesting the same and the date the baUot was furnished. . .. " Section 34-3305 of the Code, 1951 Cumulative Pocket Part, relating to ballots of absentee voters who are not in the military service, provides in part as follows: 83 "The registrar, upon receipt of the application for ballot, shall satisfy himself that the applicant is duly qualified to vote in the county for which said application is made, and shall enroll the name and address of the applicant, if found eligible, in a book to be provided for the purpose. . . . " Section 89-601 of the Code, relating to the inspection of public records and books of public officers, provides as follows: "All books kept by any public officer under the laws of this State shall be subject to the inspection of all the citizens of this State, within office hours, every day except Sunday and holidays." It would be my unofficial view that under the above-cited authorities a candidate for political office, or any other citizen, would have the right to inspect the books relating to the names and addresses of persons requesting and receiving absentee ballots, and that I know of no statutory provision prohibiting the officers having in charge such books and records from furnishing copies of such records during his office hours. ELECTIONS-Justice of the Peace (Unofficial) The election laws relative to the election of justices of the peace are discussed. November 14, 1952 Honorable Henry A. Flanders You seek information as to the election laws relative to the election of justices of the peace. Article VI, Section VII, Paragraph I of the 1945 Constitution of Georgia, provides in part as follows: "There shall be in each militia district one justice of the peace, whose official term, except when elected to fill an unexpired term, shall be for four years: . " Article VI, Section VII, Paragraph 3 of the 1945 Constitution, provides in part as follows: "Justices of the peace shall be elected by the legal voters in their respective districts, and shall be commissioned by the Governor.... " Section 34-2701 of the 1933 Annotated Code of Georgia, relating to the time and place of election of justices of the peace, provides as follows: "Justices of the peace shall be elected quadrennially on the first Saturday in December, for terms of four years beginning on January 1 following their election, by the voters of their respective districts: Provided, they have resided in the district for 30 days immediately preceding the election, and are otherwise qualified. The election must be held at the place of holding justices' courts for the district; if none, then at the election precinct; if no election precinct, then at some place in the district named by the ordinary, of which 10 days' written notice must be given in the district." Section 34-2702 of the 1933 Annotated Code of Georgia provides who shall superintend justices of the peace elections, and reads as follows: "The elections shall be superintended by three freeholders of the district, who shall be appointed by the ordinary of the county, and upon the failure of one or more of the freeholders appointed to act, the place or places shall be filled by any other freeholder or freeholders of the district, who shall take the oath required in section 34-1202." Section 34-2703 provides to whom returns of justices of the peace elections ahall be made, and reads as follows: 84 "The managers shall transmit one return of said elections to the Governor and another to the clerk of the superior court of the county, who shall keep the same on file. The ballots shall be sealed up, and the number of the district marked thereon, and delivered to such clerk." Section 34-2704 provides what laws shall govern justices of the peace elections, and reads as follows: "The laws governing the elections for members of the General Assembly shall govern in the elections for justices of the peace, whenever they may be applied, and are not inconsistent with this Chapter." Under the above cited constitutional and statutory authority, there must be held a statewide general election on December 6, 1952, for the purpose of electing justices of the peace for each of the militia districts of the State, as all of the terms will expire on December 31, 1952. Section 34-1904 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, relating to the duties of the ordinary to furnish ballots, provides in part as follows: "In all elections other:than primary elections. . it shall be the duty of the ordinary to provide and furnish at the expense of the county, ... official ballots for all such elections, ... " Under the above cited authorities, it is the duty of the various ordinaries to appoint the election managers and furnish ballots and necessary supplies for the holding of justices of the peace elections. The qualification dates for all State and county offices is provided in Section 34-3608 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, which is codified from the Acts of 1951, pp. 655-658. You will note from a reading of this statute that it provides that all candidates, national, state, district and county, shall file their notice of candidacy at least 90 days prior to the general election. You will also note that this law automatically expires on the first day of January, 1953, and, thereafter, the provisions of Section 34-1904 would become effective again, which would place the qualification dates back to the 30 days requirement before the general election for national and state offices, and 15 days before the general election for district and county offices. ELECTIONS-Justice of the Peace (Unofficial) It is mandatory that the ordinary hold general elections for justices of the peace, as provided by law. November 21, 1952 Honorable W. W. McKinnon You ask whether or not it is permissible for the ordinary of Webster County to disregard the constitutional and statutory provisions relative to the holding of the general election for justices of the peace on December 6, 1952. The Constitution and statutes of Georgia provide that justices of the peace shall be elected quadrenially on the first Saturday in December, for terms of four years, by the voters of their respective districts, and that such election shall be superintended by three freeholders of the district who shall be appointed by the ordinary of the county, and that the laws governing the election of members of the General Assembly shall govern the election of Justices of the Peace, whenever they may be applied, and are not inconsistent with Chapter 34-27 of the 1933 Code of Georgia. I know of no authority for any public official to disregard the constitutional or statutory provisions of laws of the State of Georgia, which provide for the holding of an election. 85 ELECTIONS-Justices of the Peace-Constables (Unofficial) The justices of the peace and the constables, being state officers, the ordinary is entitled to his fees for performing the duties in elections held for said officers the same as for any other general election. Honorable V. E. Chambers November 26, 1952 I am pleased to acknowledge receipt of your letter relative to the fees allowed the Ordinary for performing duties connected with an election. Your attention is called to Section 24-1716 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Part), which provides: "For preparing all papers, appointing managers, consolidating returns in general and special elections, each ballot box .. $5.00." The above cited section should be considered in the light of Section 34-2705, which provides that constables shall be elected at the same time and place as justices of the peace, and that the returns for the constables shall be made to the ordinary of the county. Therefore, you have the justice and constable election at the same time and place, but the returns for the justice of the peace is made to the Governor by the managers of the election, and the returns for the constable to the ordinary. The Supreme Court of Georgia, in the case of Long v. State, 127 Ga. 285, held that a justice of the peace exercises his functions only in a given county, and generally in the district of his residence, but he is nevertheless an officer of the state. The Supreme Court, in the case of Rose v. State, 107 Ga. 697, also held that a constable is a state officer, and that the election for a constable and justice of the peace is a general state election. It would be my unofficial and personal view that an Ordinary would be entitled to the fee as provided in the above cited statutory provision for performing the duties as provided therein in justices of the peace and constables' elections, the same as he would for any other general election. ELECTIONS-Eligibility of Party Committeemen (Unofficial) The Chairman of the County Democratic Committee may legally run for a state house or county office. March 24, 1952 Honorable Kenneth E. Goolsby You request my opinion on the following: "Can a person serve as Chairman of the County Democratic Committee and be qualified to run for a statehouse, or a county office, and if the person so running, and is duly elected by the people, can his office be contested in any way other than the general grounds as specified under Code Sections 34-3201 et al ?" I do not find any statutory or constitutional prohibitions against a member of a County Democratic Executive Committee being qualified to run for a statehouse or county office solely upon the ground of his being a member of such committee. The reasons and conclusions which you arrive at in your letter address themselves to either the General Assembly for curative measures, if that body should concur in your reasoning, or it may be that a person desiring to become a candidate, who is Chairman of the County Democratic Executive Com- 86 mittee, would disqualify himself on his own motion from participating in any recount activities growing out of the election in which he participated as a candidate. I do not find any ground for contest under Code Section 34-3201. However, the procedure for recounts in primary elections is contained in Sections 34-3223 through 34-3236 the 1951 Cumulative Pocket Part of the 1933 Annotated Code of Georgia, which was codified from the Acts of 1941, pages 432-438. Contests in elections other than primary elections are contained in Chapters 34-28, 34-29 and 34-30 of the 1933 Annotated Code of Georgia, and I would suggest that you consult these authorities for contest procedures. ELECTIONS-Voters' Age (Unofficial) A person who will be 18 years of age as of the date of the general election is entitled to vote in the primary held prior thereto although such person was not 18 at the date of said primary. March 18, 1952 Honorable A. E. Williams Pursuant to the oral request of the Honorable John Sheffield, Representative, Brooks County, I am writing this letter concerning the eligibility of a person who will be eighteen years of age as of the date of the genteral election to vote in the primary held prior to such general election. On January 13, 1948, I rendered an opinion to the Honorable A. F. Turnell, Tax Collector, Morgan County, which opinion is published in the 1948-49 Opinions of the Attorney General, page 167, and which reads as follows: "I am pleased to acknowledge receipt of your letter of January lOth, in which you ask whether or not a person who is presently under 18 years of age, but who will be 18 by the date of the general election, will be qualified to vote in the primary to be held in April. It is my understanding that all persons who will be 18 years of age or over at the time of the general election will be qualified to vote in primaries prior to this time. The age qualifications of the voters are determined as of the date of the general election in November." ELECTIONS-County Primaries (Unofficial) County primaries have no legal efficacy. Honorable William T. Dean January 18, 1952 Replying to your letter relative to members of the General Assembly run- ning in a county primary, I am pleased to send you copies of two previous unofficial opinions on the question propounded in your letter: one, dated December 28, 1939 to Honorable Casey Thigpen; and one dated January 13, 1948 to Honorable G. B. Moore. Both of these are self-explanatory. Your attention is also called to the constitutional provision contained in Article III, Section VII, Paragraph I of the Constitution of Georgia, which provides: "Each House shall be the judge of the election, returns, and qualifications of its members . " 87 In connection with the above-cited constitutional provision, your attention is also called.to the case of Rainey v. Taylor, 166 Ga. 476, in which the Supreme court of Georgia held: "The Judge of the Superior Court did not have jurisdiction to hold, in quo warranto proceedings, that a member of the General Assembly of Georgia, who had been elected to that position and who had been sworn in as a member, was ineligible or disqualified for membership in that body; and the demurrer raising the contention that the court was without jurisdiction should have been sustained." Your attention is also called to the paragraph in the Thigpen opinion in which it is pointed out that it has been the custom in some counties, usually followed in the year in which an county officers are nominated, to hold preferential primary elections for representative at the same time as the primary is held :for county officers. It also points out that such county primaries have no legal effect, although as a matter of practice the results are usually abided by. ELECTIONS-Primary-Registration (Unofficial) The officials :from the various political parties are authorized to set registration dates for county primaries. February 27, 1952 Miss Opal Hale Faulk You request that I advise you as to the deadline for registration in the Twiggs County Primary on March 12, 1952. I refer you to the following: OPINIONS OF THE ATTORNEY GENERAL, 1948-49, page 178, in which it was held in an unofficial opinion as follows: "I am of the further personal opinion that since the election we are dealing with is a (county) primary election, the party authorities holding the same may in cooperation with the registrars and the Tax Collector formulate any rules and regulations in connection therewith in reference to the time of closing the books and the preparation of the lists of qualified votQrs to be used in the election as they may deem reasonable. See Code Section 34-3209." OPINIONS OF THE ATTORNEY GENERAL, 1945-47, page 257, in which it was held in an unofficial opinion as follows: " ... and that the party authorities holding the primary may in cooperation with the registrars and the tax collector formulate rules and regulations governing the time of the closing of the registration lists." ELECTIONS-General Election-Holding a Primary (Un10fficial) A special election held to fill a vacancy in the board of county commissioners may be held at the same time that the state primary election is held, although said election would have to be conducted separately. Honorable J. Pierce Anderson April 8, 1952 This is in response to your letter relative to an election to fill a vacancy on the Board of Commissioners of Roads and Revenues of Jones County. Personally and unofficially, I concur in your opinion that such election could be held on the same date as the State Primary on May 14, 1952, with the exception that there would have to be a separate ballot used other than the primary 88 ballot and separate ballot boxes would have to be provided. The election to fill the vacancy on the Board of County Commissioners is an election and not a primary to nominate a person to run in an election, and therefore could not be merged with the primary. The election to fill the vacancy must be conducted in conformity with the laws covering general elections. ELECTIONS-Recount-Judge (Unofficial) Where a recount is to be held for an election, the third member of the committee constituted to conduct such recount is required by law to be the Judge of the Superior Court of the Judicial Circuit adjoining that in which the county is located where the recount is to be held. Honorable H. T. Sanders April 17, 1952 You request that I advise you whether to notify the senior judge who is now active or on the bench or whether to notify the senior judge emeritus in con- ducting a recount as provided by law. Section 34-3226 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, provides: "When such written demand for recount of the ballots is filed as required by the foregoing section, it shall be the duty of the executive committee of the county or the chairman thereof or other official of the counity or of the political party holding such primary, under whose authority it was held, to grant such recount and to notify all candidates voted for at the primary of such demand for the recount and to fix a time and place for conducting a recount, of which all such candidates shall have not less than 48 hours' notice." Section 34-3227 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, provides: "Upon the filing of such demand for a recount and upon notice thereof being given to all candidates at such primary, such defeated candidate or candidate authorized to demand and actually demanding a recount in conformity with the foregoing sections, and the successful candidate, shall each immediately select one representative to act as a member of a committee to conduct the recount of the ballots. The judges of the superior court of the judicial circuit adjoining that in which such county is located shall be the third member of the committee to conduct such recount. If there be more than one such judge of the superior court or more than one such adjoining circuit, the senior judge in commission shall be the member of the committee, unless he be disqualified by reason of relationship within the fourth degree according to the canon law to one of the contending parties; in that event, the next judge in point of seniority shall be a member of the committee. 'The committee as thus constituted shall conduct the recount of the ballots as hereinafter provided." You will note that the above cited statutory provisions are clear in providing that the judge of the superior court of the judicial circuit adjoining that in which the county is located and where the recount is desired shall be the third member of the committee to conduct such recount and if there be more than one judge of the superior court, the senior judge in commission shall be the member of the committee unless he be disqualified for the reasons set forth, in which event the next judge in seniority would be the member of the committee. No reference is made to superior court judges emeritus. Section 24-2607a of the 1933 Annotated Code of Georgia, 1951 Cumulative 89 Pocket Part, sets forth the duties of judges of the superior courts emeritus and provides as follows: "It shall also be the duty of the judges of the superior courts emeritus to consult with the Justices of the Supreme Court and the Judges of the Court of Appeals, and to advise and assist each of said Courts in the revision of the rules of practice of the said Courts and in handling the administrative duties now or hereafter placed upon said Courts or the members thereof by law. It shall also be the duty of the judges of the superior courts emeritus to consult with the Attorney General and the assistants to the Attorney General upon legal matters, when their advice and consultation are requested." ELECTIONS-Transfer of Registration (Unofficial) The laws relative to transfer of voters' registration are discussed. Honorable B. 0. Brinson April 18, 1952 You ask certain questions regarding elections and voters. Relative to accepting transfers from one county to another, your attention is called to Section 34-142 of the 1933 Annotated Code of Georgia, 1951 Pocket Part, which provides as follows: "If any person shall change his residence from one militia district to another or from one county to another after qualifying to vote and shall desire to vote in any election in the district or county into which he removes at which he would be qualified to vote, he shall have the right, upon application to the registrars, and satisfactory proof before them that he will be qualified to vote at said election, to have his name placed upon the list of registered voters for the district or county into which he has removed, for said election, with the same rights as others registered for said election, provided necessary proof is in the hands of the registrars 10 days before such election and the name of such person shall be stricken from the list on which it formerly appeared, prior to the date of such election. (Acts 1949, pp. 1204, 1224.)" ELECTIONS-Voters' Lists (Unofficial) All those voters whose names appeared upon the Voters' Lists for the years 1948-49 would be eligible to vote in the state primary and general election held in 1952 unless their names had been purged as provided by law. April 25, 1952 Mr. I. C. Williams You request that I advise you if all persons listed on the voters' list for the years of 1948-1949 should be allowed to vote in the State Primary and General Election. I am forwarding you a copy of the Voters' Registration Act as amended by the Acts of 1952, pp. 12-15, approved February 4, 1952. Your attention is called to the provisions contained in Section 2, reading as follows: " 'Section 2. That notwithstanding any other provisions of this Act, any person who was registered and qualified to vote in the 1948 general election or the 1950 general election or both shall not be required to re-register under the terms of this Act unless such person shall have become or becomes disqualified to vote, by reason of having been purged from the list of qualified voters or for any other reason whatsoever, in which event, such person shall, in order to 90 become qualified to vote, re-register under the terms of this Act.' " Your attention is specifically called to the provisions of the above-cited Section stating that all persons who were registered and qualified to vote in the 1948 or 1950 General Election or both shall not be required to re-register, unless such person shall have become or becomes disqualified to vote by reason of having been purged from the list of qualified voters or for any other reason whatsoever, in which event such person shall, in order to become qualified to vote, re-register under the terms of the Voters' Registration Act. Your attention is also called to Section 4 (Ga. Laws, 1952, p. 15) which amends the original Section VI of the 1949 Registration Act and reads as follows: "Section 4. That the said amendatory Act of 1950 is hereby amended by striking from Section VI thereof the last sentence which reads as follows: 'Any person denied registration under the new Registration Law of 1949 shall not be eligible to vote in any election in this State, and all lists shall be so purged,' so that said Section VI when so amended shall read as follows: 'Section VI. It shall be the duty of the county registrars of each county appointed pursuant to said Act of February 25, 1949, as amended, to purge the said 1948 lists of voters, as provided by law, of all persons who have become disqualified since the certification of said 1948 lists or for any reason are now disqualified or may be disqualified before the certification of said lists.' " All persons who were not registered and qualified to vote in the 1948 General Election or the 1950 General Election and who have not registered under the provisions of the 1949 Voters' Registration Act as amended would necessarily have to register under the provisions of the 1949 Voters' Registration Act as amended. ELECTIONS-Sample Ballots (Unofficial) It would be illegal for an ordinary or any other public officer to display in a glass case in the courthouse, a sample ballot with instructions, which ballot is in the likeness of an official ballot. September 17, 1952 Honorable T. N. Holcombe, Jr. You request that I advise you if you can have printed a sample ballot to be enclosed under glass and put on display in the Courthouse lobby, with instructions attached thereto or nearby, for the correct voting of said ballot. Section 34-1907.1 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, provides as follows: "No person, firm or corporation shall print, have or possess a ballot or ballots or any likeness of the same, except the officials having charge of the general elections, primary elections, or special elections under the laws of this State, and the electors when engaged in the acts of voting." Section 34-9917.1 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, provides: "A violation of Section 34-1907.1 shall constitute a misdemeanor, and upon conviction of same such person, firm, or corporation shall be punishable as for a misdemeanor.'' You will note that the above Code Section provides that it is a violation of the statute for anyone except the officials having charge of the elections enumerated to "possess" or "have" a ballot or any likeness of the same. It would be my unofficial view that this Section intended that no person, firm or corporation 91 should possess a ballot or any likeness of the same outside or beyond the duties imposed upon a person authorized to handle such ballots. There is no statute authorizing the ordinary to display a sample ballot. Therefore, unofficially I do not believe that it would be legal for you to display, in the form that you state in your letter, a sample ballot that will be used in the general election. Any person, firm, or corporation printing a sample ballot for use other than that provided by law would be in violation of the above-cited section of the law. I agree that it would be well for the public to be familiar with the constitutional amendments and other matters on the ballot for the November 4th election. This can be done legally by having copies of the proposed constitutional amendments printed and circulated for educational purposes, provided the form on which they are printed bears no likeness to the official ballot to be used in the general election. ELECTIONS-Servicemen (Procedure discussed) (Unofficial) The procedure to be followed by a soldier in procuring a ballot to vote in the primary election is discussed. April 17, 1952 Honorable E. W. Perry You ask that I advise the Board of Registrars of Marion County as to the procedure that a soldier will have to use in securing a ballot to vote in the May 14 Primary and what the Board of Registrars will have to do to furnish ballots for the soldiers to vote. Section 34-3613 of the 1933 Annotated Code of Georgia, 1951 Pocket Sup plement, which is codified from the Acts of 1951, pp. 655, 659, relating to the furnishing of ballots for primary elections to men and women in the military service of the United States, provides: "It shall be the duty of the county registrars in any primary election held by any political party for the nomination of candidates for the office for Governor, State house officers, members of Congress, United States Senators, judges of the superior courts, Justices of the Supreme Court, Judges of the Court of Appeals, solicitors general, and members of the General Assembly to furnish to any member of the military who is a registered and qualified voter and who is a member of the political party holding the said primary a ballot for the use of the military voter who is a member of the said political party in casting his vote in the said primary election. Said request to the registrars can be made by the member of the military, his relative or friend, and in making such rquest applicant shall give the name and address of the military voter. The registrars so furnishing the said ballot shall number the same and in a permanent record book provided for the purpose, shall inscribe the number of the ballot, the name of the military voter for whose use it is intended, the name of the person requesting same, and the date the ballot was furnished: Provided, however, the registrars are authorized to furnish a duplicate ballot for good and sufficient cause to the military voter: Provided, further, however, that a notation shall be made thereof in the book hereinbefore referred to. Such registrars in furnishing said ballot to such voter, shall also furnish a self-addressed envelope for the return of such ballot to such registrars." Section 34-2604 of the 1933 Annotated Code of Georgia, 1951 Pocket Part, provides as follows: "The term 'military' as used in this Chapter shall mean enlisted and com- 92 missioned members, male and female, of the Army of the United States, the United States Navy, the United States Marine Corps, the United States Coast Guard or any of their respective components who are citizens of Georgia." You will note that in the above-cited Code Section 34-3613 it is provided that any member of the military, his relative, or friend, may make a request that a ballot be mailed to the member of the military and the name and address of the military voter shall be stated in such request. Your attention is also called to Code Section 34-3605 of the 1933 Annotated Code of Georgia, 1951 Pocket Part, which provides that any member of the military, his relative or friend, is authorized at any time to request from the ta:x: collector or commissioner or registrars a registration card for the purpose of registering as a registered voter. Of course this is not required where a member of the military is already registered. In order to be of help to you, I am sending you a copy of what is commonly referred to as the "Soldiers' Voting Law," being an Act of the 1951 General Assembly and found at page 655. ELECTIONS-Write-in Votes (Unofficial) Write-in votes are legal in this state; if a voter desiring to make a writein vote fails to strike the name of the candidate appearing on the printed ballot, said ballot cannot be counted by the election manager. October 16, 1952 Honorable P. T. Hipp I am pleased to acknowledge receipt of your letter relative to "write-in" votes. Your attention is called to the case of Stewart v. Cartwright, 156 Ga. 198, in which the Supreme Court of Georgia said: "The Legislature cannot, in our judgment, restrict an elector to vote for some one of the candidates whose names have been printed upon the official ballot. He must be left free to vote for whom he pleases, and the Constitution has granted to him this right." A qualified voter has the right to strike the name of any candidate upon an official ballot and write in the name of any candidate he may desire to cast his vote for. All "write-in" votes must be counted by the election managers, where it can be ascertained from the ballot for whom the "write-in" vote was cast; provided, that if the voter desires to vote against a candidate whose name is printed on the official ballot and write in the name of the candidate he desires, he must strike out the name of the candidate he desires to vote against. If he wrote in the name of the candidate and did not strike out the name of the candi- date he desires to vote against, the ballot could not be counted by the election managers. You ask the question, how can a man vote for state and county officers on the Democratic column, and then vote for a Republican candidate without voiding his ballot. The answer is: That a voter may, by placing an X in the space provided at the top of the Democratic column and striking out the names of any of the candidates in the Democratic column that he does not desire to vote for, write in the name or names of any candidates that he may desire and the office which he is to fill on the space provided on the ballot. It makes no difference whether the person voted for by the "write-in" method be a Republican or otherwise. Likwise, under the same procedure, a person 93 could strike names in the Republican column and vote for whomever he may please in the space provided on the ballot. ELECTIONS-Holding-Write in Votes (Unofficial) 1. Section 34-1201 of the Geogia Code has not been amended. 2. "Write-in" voters may legally use rubber stamps and stickers so long as it is possible for the election manager to determine who and for what office the voter is voting for. Mrs. Gladys McAllister Poe October 14, 1952 You request that I advise you if Sections 34-1201 and 34-1401 of the 1933 Annotated Code have been amended. Section 34-1201 of the 1933 Annotated Code of Georgia, relating to who shall be the managers of elections for members of the General Assembly, provides as follows: "The persons qualified to hold elections for members of the General As:;~embly are ordinaries, justices of the peace, and freeholders. There must be three managers, and one must either be an ordinary or a justice of the peace, except that if by 10 o'clock A. M. on the day of election there is no proper officer present to hold the election, or there is one and he refuses, three freeholders may superintend the election, and shall administer the oath required to each other, which shall be of the same effect as if taken by a qualified officer. Persons who cannot read and write shall not be competent to serve as managers of elections." The above statutory provision was codified from the Act of 1880-'81, page 151, and has not been amended as of this date. It specifically requires that of the three managers at a precinct, one must either be an ordinary or a justice of the peace, except in the event that neither one of these be present by 10 o'clock on the day of the election. In such an event, it provides who would handle the affairs of the precinct. The ordinary would not be authorized to displace the justice of the peace of the district in serving as an election manager in conflict with the above statute. It has been the general custom for the various ordinaries to appoint the other election helpers. Section 34-1401 of the 1933 Annotated Code, relating to election forms to be furnished by the Governor and ordinary, provides as follows: "The Governor shall furnish the several ordinaries all blank forms necessary for said elections, which they shall furnish the justices of the peace at lease 10 days before election day, and on failure to do so shall be liable to a fine not exceeding $100." The above Code section is clear that when the ordinary receives the blank forms to conduct a general election, he or she shall furnish them to the justices of the peace of the county who are to hold the election at least ten days before election day, and upon the ordinary's failure to do so, he or she would be liable to a fine not to exceed $100 in each instance. This section has not been amended or repealed as of this date. Relative to your questions concerning the use of rubber stamps and stickers by "write-in" voters, it would be my personal and unofficial view that since there is no statutory prohibition against their use and no statutory provision specifically providing how a qualified voter may mark his ballot, if the rubber stamp Dr sticker is used to place the name of a "write-in" candidate upon an official 94 ballot in a proper manner in order that the election managers can determine from such stamp or sticker who and for what office the voter is voting for, and has properly struck from the ballot the name of the candidate for whom the voter desires not to cast his vote, then and in that event the rubber stamp or sticker method probably would be legal. EMINENT DOMAIN-Condemn~tion in municipality (Unofficial) A county may legally acquire rights of way by condemnation within the city limits of an incorporated municipality. Honorable Warner B. Gibbs July 16, 1952 You request my opinion as to whether the county would be authorized to file condemnation proceedings to acquire land for right of way purposes on a project a part of which is within the city limits of Screven. It is my view that the county authorities would be authorized under Section 36-1001 of the Code of Georgia, Supplement, to acquire rights of way by condem- nation within the city limits of the town of Screven. EXECUTIVE DEPARTMENT-Merit System A state employee taking two weeks' annual military leave is entitled to reinstatement, with pay, as provided in the rules and regulations of the State Personnel Board. Honoraqle Edwin L. Swain Merit System Director July 29, 1952 You request my opinion on the following question: Does the enactment and approval of the statute of 1952 (Ga. Laws 1952, pp. 93-94) invalidate the regulation of the State Personnel Board providing for Military Leave with pay as set forth in Paragraph B.501 of the Rules and Regulations of the State Personnel Board adopted pursuant to the authority delegated in the Merit System Act (Ga. Laws 1943, pp. 171-177)? After a thorough analysis of the provisions of the act approved February 12, 1952 (Ga. Laws 1952, pp. 93, 94), I reach the conclusion and it is my opinion that this law was enacted by the General Assembly of Georgia for the purpose of granting to persons attached to the reserve component of the Armed Forces of the United States or of the State of Georgia rights of retention of employee status with their employers and to give such persons a right of action for damages against an employer who refuses to reinstate an employee still qualified to perform the duties of his position which he held prior to the taking of the two weeks annual leave in such military forces, and that this act, under the provisions of Section 2 thereof, does not in any way repeal or modify the provisions of the Merit System Act (Ga. Laws 1943, pp. 171-177), or Paragraph B.501 of the Rules and Regulations of the State Personnel Board adopted pursuant to said 1943 Act which is applicable to employees of the State of Georgia and certain county agencies enumerated in said Act. 95 FORESTRY & GEOLOGY-Construction of Dam The Forestry Commission may not legally assist a private corporation in the construction of a dam on property belonging to the latter, notwithstanding the fact that the state would receive considerable benefit therefrom. August 19, 1952 Honorable Guyton DeLoach Director, Georgia Forestry Commission You state that the Georgia Forestry Commission has leased from the Union Bag and Paper Corporation for a period of five years approximately 100 acres of land to be used as a nursery site. You state that this land is adjacent to a site owned by the Union Bag and Paper Corporation that is proposed for a lake site and you have verbally agreed to assist them in the preparation of a dam for this lake. You also state that by having a lake adjacent to the property you have under lease, you will be assured of an ample water supply for your nursery supply of pine seedlings, and if you do not have access to the proposed lake it will be necessary to drill a well capable of producing 600 gallons of water per minute. Your attention is directed to Article VII, Section III, Paragraph IV of the 1945 Constitution, which provides in part as follows: "2-5604.-State aid forbidden.-The ... State shall not ... become a joint owner or stockholder in or with, any individual, company, association or corporation." From the facts stated in your letter, it appears that the property proposed to be improved by using convict labor is owned by a private corporation. Therefore, it is my opinion that you would not be authorized to use convict labor or funds of the state to improve private property even though your department may derive certain benefits from such improvements. FORESTRY & GEOLOGY-Jurisdiction of JP Courts A justice of the peace court has no jurisdiction to try cases involving a violation of the forest fire laws. September 10, 1952 Mr. H. E. Ruark Assistant Director Fire Control Georgia Forestry Commission You ask whether justices of the peace could legally try cases involving violation of forest fire laws so that the trial of such cases could be expedited. The jurisdiction of the justices of the peace does not extend to the actual holding of the trials of criminal cases. I know of no way to speed up hearings on your cases other than by an appeal to the solicitors and judges involved. FORESTRY & GEOLOGY-Forestry Investigators Forestry investigators are not required to have administered to them an oath of office, nor are such investigators required to furnish a bond. September 3, 1952 Honorable Guyton DeLoach, Director Georgia Forestry Commission FACTS: Act No. 799, Georgia Laws 1952, p. 211, amended the Department of Natural Resources Act, Georgia Laws 1937, p. 264, so as to provide authority 96 for State forestry investigators to carry weapons and make summary arrests for violations of the fire laws of Georgia. No provision is made by the act for administering oaths to or requiring bonds of such investigators. QUESTIONS: 1. Who is authorized to give forestry investigators the oath of office? 2. To whom should bond fees be paid? ANSWER: There is no provision in the act requiring such investigators to subscribe to an oath or take out a bond, nor is there any common law rule requiring an arresting officer to be sworn or bonded merely by virtue of the fact that he is clothed with the power of arrest. Therefore, such requirements, if they exist, must be found in other statutes. The only statutes dealing with oaths and bonds of this nature are those found in Chapters 89-3 and 89-4 of the Georgia Code. (Except, of course, the Loyalty Oath required of all state employees by Acts of 1949, p. 960.) These two chapters of the Code provide for the taking of oaths and giving of bonds by "public officers." The question to be determined, then, is whether or not forestry investigators are "public officers" within the meaning of Chapters 89-3 and 89-4 of the Code. In a number of opinions which I have rendered to various departments of the state, I have pointed out the distinctions between "civil officers" of the state and "employees" of the state, and have held that employees are not under the same inhibitions placed upon officials of the state as to employment by other state departments, counties, or the federal government while continuing to hold state jobs. In the case of forestry investigators, there is no constitutional or statutory office created, the number to be appointed is not fixed, their salaries are not fixed, they are not commissioned by the Governor, and they are not in general surrounded by various other circumstances indicative of the existence of a public office. I am, therefore, of the opinion that forestry investigators provided for by acts of 1952, page 211, are not "public officers" of the state, but are "employees" only, and as such do not fall within the Code sections above referred to and are under no requirement to give bond or take an oath, other than the Loyalty Oath. FUGITIVES FROM JUSTICE-Costs to Responding State Under the facts stated, Georgia, the demanding state in extradition proceedings pending in Pennsylvania, is required to pay all costs and expenses incurred by said state in securing and maintaining the prisoner. Honorable Herman Talmadge July 17, 1952 Governor of Georgia You request me to advise you if the State of Georgia is liable to Allegheny County, Pennsylvania, for the attached account covering costs and expenses in- curred by that county in securing and maintaining Robert McMillen, alias Leon Johnson. Title 18, Section 3195, United States Code Annotated contains the following provision: "All costs or expenses incurred in any extradition proceeding, in securing, apprehending and transmitting a fugitive shall be paid by the demanding au- thority." 97 Section 24 of the Uniform Criminal Extradition Act, Georgia Laws, 1951, p. 726-737 provides that: "When the punishment of the crime shall be the confinement of the criminal in the penitentiary, the expenses shall be paid out of the State Treasury, on the certificate of the Governor and warrant of the Auditor . , . " In view of the fact that the federal law is controlling in extradition proceedings and the punishment of the subject fugitive involves confinement in the penitentiary, it is obvious that the State of Georgia would be liable for the payment of the attached account and that payment would have to be made by the State Treasury, on the certificate of the Governor and warrant of the Auditor. FUGITIVE FROM JUSTICE-Sheriffs' Expenses (1) Under the Uniform Criminal Extradition Act the state may legally pay the expenses of a sheriff for hotel and meals. (2) Under said act, the sheriff is also entitled to traveling expenses at 8 cents per mile, notwithstanding the fact that the general state statute provides 6 cents per mile. October 9, 1952 Honorable B. E. Thrasher, Jr. State Auditor You request that I give you my opmwn upon the following questions relating to expenses to be paid by the State of Georgia under the Uniform Criminal Extradition Act of 1951 (Georgia Laws 1951, pages 734-735). "We have received our first bill for expenses of a sheriff in an extradition case, which is filed under the provisions of Section 24, Acts 1951, page 734-735, and the bill is submitted as follows: " 'Enclosed fund bill for expenses advanced by me in the above stated case as follows. " 'Fee for Extradition to the Governor of Illinois ___________________________ Mileage, 2036 Miles at $.08 per mile Hotel, 6 days at $6.00 per day __ Meals, 18 Meals at $1.50 per meal ____ _ $ 2.00 162.00 36.00 27.00 $227.88 Very truly yours, A. Ben Connor Sheriff, City Court of Savannah' "As you will observe the bill has items for hotel and meals, when the act referred to states the expenses shall be the fees and not exceeding 8 cents per mile without mention of hotel and meals. "Also under general state law the mileage has been fixed by the Supervisor of Purchases at 6 cents per mile, whereas the 1951 Act says that the above referred to expenses shall not exceed 8 cents a mile. "Please give me your opinion as to what items of expenses above referred to are legally payable under the 1951 Act and as to what the legal amount is that can be paid for mileage." Section 24 of the Uniform Extradition Act of 1951 provides: 98 "When the punishment of the crime shall be the confinement of the criminal in the penitentiary, the expenses shall be paid out of the State treasury, on the certificate of the Governor and warrant of the Auditor; and in all other cases they shall be paid out of the county treasury in the county wherein the crime is alleged to have been committed. The expenses shall be the fees paid to the officers of the State on whose Governor the requision is made, and not exceeding 8 cents per mile for all necessary travel in returning such prisoner." The first part of the above cited section is clear in providing that in all extraditions where the crime is confinement of the criminal in the penitentiary of the state, the expenses shall be paid out of the State Treasury on a certificate of the Governor and warrant of the State Auditor. The second part of this section defines what expenses are to be paid and these are: (I) fees paid to officers of the State on whose Governor the requisition is made. The item of $2.00 in the bill under consideration which was paid to the Governor of Illinois falls within this category. (2) Not to exceed 8 cents per mile for all necessary travel in returning such prisoner. The item of 2,036 miles at 8 cents per mile in the bill under consideration would fall within this category, provided that the Governor and the State Auditor fix the mileage expenses at the maximum of 8 cents per mile. It is my view that Section 24 authorizes the Governor and the State Auditor, jointly, to fix the travel mileage at any amount per mile not to exceed 8 cents, in cases of extradition under the Uniform Extradition Act of 1951. There is no provision in the Uniform Extradition Act specifically providing for the payment of the other two items in the bill in question, namely, expenses for lodging at hotel and for meals. However, your attention is directed to the provisions of Section 40-305 of the 1933 Annotated Code of Georgia, which authorizes the Governor to employ agents for the discharge of any duty required by law and essential to the interests of the state, which reads as follows: "The Governor shall have power to engage the services of any competent person for the discharge of any duty required by the laws, and essential to the interests of the State, or necessary, in an emergency, to preserve the property or funds of the State." In addition to the above statutory provision, your attention is also called to the provisions of Section 22 of the Uniform Extradition Act of 1951, relating to the duty of the Governor in issuing his demand for the return of fugitives from this State, wherein it is provided, in part, as follows: "He shall issue a warrant under the seal of this State to some agent, commanding him to receive the person so charged . . . and convey him to the proper officer of the county in this State in which the offense was committed." Under the provisions of the above two last cited statutory provisions, the Governor is required to appoint a person to act as agent of the State of Georgia to receive a fugitive from justice from this state and return him to the ~ntho'.'ilies of the county from which he is a fugitive. When the Governor ads under these statutory provisions, it necessarily follows that he is authorized to pay the expenses, such as lodging at hotel and meals. It would be my view that under this statutory authority ttle Governor would bo authorized to pay to the agent appointed by him in the extradition matter question, the two items in the bill covering hotel expense--6 days at $0.00 per day, and 18 meals at $1.50 per meal-from the funds available to him in the Executive Department. You refer to the general state law relative to the mileage as fixed by the Supervisor of Purchases at 6 cents per mile. This statute, which provides for 99 mileage for state officers and employees, was enacted in 1950 (Georgin Laws 1950, pages 224-225). The Uniform Extradition Act of 1951 was appn ved J-<'ebruary 21, 1951. Both of these laws are general laws of the state and would be of equal dignity and sta!'ding except for the fact that the act of 1.951, the Uniform ExtradWon Act, 1s the lasi expression of the General Asslcn:bly in so .far as the mileage in exb:-adition matters is concerned, and would be controlling in the reimbursement of mileage expenses in extradition cases. One point which presents itself as to the payment of the first two items in the bill in controversy is that Section 24 provides that the expenses shall be paid out of the State Treasury, on the certificate of the Governor and warrant of the Auditor. I find no appropriation made by the General Assembly in the General Appropriations Act covering such expenditures, or against which a warrant could be drawn by these officials. Therefore, it would be encumbent upon the Governor, in his discretion, to pay such items from funds available to the Executive Department by appropriation, inasmuch as the person submitting the bill would be the agent appointed by the Governor. GAME & FISH-Elections-Power Nets Under the act referred to, an election held for the purpose of determining whether certain waters will be open for commercial shrimping with powerdrawn nets, must include both sounds and inland water, and may not be held as to opening only one of the foregoing. Honorable Fulton Lovell Director, Game and Fish Commission July 28, 1952 You request an official opinion from my office construing the meaning of Act No. 609, Georgia Laws 1952, page 77, as to the meaning of an election by a county where the citizens have secured a number of qualified voters, being not less than 10% of said voters, to call an election for the opening of sounds, rivers, creeks and esturaries. Georgia Laws, 1952, p. 77, No. 609 provides in Section 3 in part as follows: "Be it further enacted that before any sounds or inland waters on the coast of Georgia be opened for commercial shrimping or fishing with power drawn nets for the purpose of taking shrimp or fish from said waters, that an election shall be first called in any one of said counties to determine the desire of the people of such county with respect to opening of said sounds and inland waters. Such election shall be called by the ordinary of the county in which the election is sought to be held, upon the filing of a petition signed by 10% of the voters of said county who were qualified to vote at the last general election for members of the General Assembly. Said election shall be held within 60 days from the filing of the petition. . . . " It is my interpretation from the wording of Section 3 of said act that the intention of the General Assembly of Georgia was that an election called as required by said section should include both sounds or inland waters such as creeks, rivers and estuaries. Since the words "sounds or inland waters" are conjunctively used in said act, it would simply mean that if an election was called for the purpose of determining the opening of such sounds or inland waters such as rivers, creeks and estuaries, that the determination of the election would be either in favor of the opening of all or the closing of all. 100 GAME AND FISH-Joint Ownership of Fence The Game and Fish Commission is without authority to expend funds to be used in the construction of a fence which, upon completion, will be jointly owned by the state and a private individual. April 29, 1952 Honorable Fulton Lovell Director State Game and Fish Commission You request that I advise you as to the form of two agreements which you enclosed. The first agreement is between the State Game and Fish Commission and the Davies Plantation regarding the building of a fence on the line between state property and the Davies Plantation. The second agreement relates to a permit authorizing attachments of the Southern Bell Telephone & Telegraph Company along Gillionville Road out of Albany, Georgia. Article VII, Section III, Paragraph IV of the Constitution of Georgia of 1945 (Code Section 2-5604 reads as follows: "The credit of the State shall not be pledged or loaned to any individual, company, corporation or association and the State shall not become a joint owner or stockholder in or with, any individual, company, association or corporation." In the agreement between the Game and Fish Commission and the Davies Plantation, the Davies Plantation agrees to the following: "Upon completion of the construction of the above fence, to pay to the Georgia State Game and Fish Commission one half the cost of labor and materials involved in construction thereof." This indicates joint ownership and falls within the prohibition of the constitutional provisions cited above. This agreement between the Game and Fish Commission and Southern Bell Telephone and Telegraph Company is purely administrative and is issued for record purposes only. The form is in keeping with the administrative duties and powers delegated to the State Game and Fish Commission. GAME AND FISH-Lake Burton Hatchery-State Funds The Game and Fish Commission is authorized to expend additional funds upon the Lake Burton Fish Hatchery. pursuant to resolution of the General Assembly of 1952. Honorable Fulton Lovell, Director Game and Fish Commission February 21, 1952 FACTS: On the 3rd day of June, 1942 the Georgia Power Company granted to the Division of Wildlife, Department of Natural Resources, a license to construct, operate and maintain several fish rearing pools and a flume line on lands adjacent to the Burton Reservoir in Rabun County, the license to continue in force and effect so long as the fish rearing pools and flume line are operated and maintained by the State of Georgia. QUESTION: Does the Game and Fish Commission have the authority to expend ap- propriated funds for the further development and maintenance of this proprty? LAW: The General Assembly at its 1952 adjourned session passed House Resolution 101 No. 283, which was approved on February 12, 1952, (Ga. Laws 1952, p. 507), providing in part as follows: " ... WHEREAS, the Division of Wildlife, Department of Natural Resources, has a lease from the Georgia Power Company covering the Lake Burton Fish Hatchery property, and ... WHEREAS, it is now necessary for the proper operation and maintenance of the Fish Hatchery already constructed that more improvements be .'made, and WHEREAS, there is available funds which can be expended for this purpose, ... NOW, THEREFORE BE IT RESOLVED by the House of Representatives, the Senate concurring, that the Director of the Game and Fish Commission is hereby authorized and empowered, with the approval of the Budgetary Commission, to expend any funds which might be made available to said Commission for the further development and maintenance of the Lake Burton Fish Hatchery property." OPINION: In view of the clear grant of authority given by the General Assembly to the Director of the Game and Fish Commission, it is my opinion that the Director of the Game and Fish Commission, acting upon the approval of the Budgetary Commission, would be authorized to make further improvements upon the Lake Burton Fish Hatchery property. This opinion is not to be construed to apply to any other project or areas except those contained in the lease or license agreement between the Georgia Power Company and the Division of Wildlife, Department of Natural Resources, dated June 3, 1942 covering the Lake Burton Reservoir property. GAME AND FISH-License Agent's Fees The amount of compenf?ation for license agents selling hunting and fishing licenses has not been changed. April 16, 1952 Honorable Fulton Lovell Director, Game and Fish Commission You ask the following question: "Will you please advise if Code Section 45-222 as amended, provides that license agents receive twnty-five cents for each non-resident fishing license issued as they did before this law was amended?" Section 45-222, as found in the 1951 Cumulative Pocket Part of the Annotated Code of Georgia and as amended by Sections 2 and 3 of Act No. 842 (Ga. Laws 1952, p. 258), does not relate to the compensation given license agents for selling non-resident fishing licenses. Such compensation is provided in Section 45-223 of the Code of Georgia of 1933 as amended. The intention of the General Assembly in the passage of Act N (). 842 is shown by the following quotation from Section 2 of the Act: "Sec. 2. In order to amend Code Section 45-222 of the 1953 Code of Georgia Supplement by striking the words, figures and symbols of 'ten dollars and twenty-five ($10.25)' wherever the same may appear and inserting in lieu thereof the words 'in the same amount as the State in which such non-resident of Georgia resides charges for a non-resident fishing license,' so that said Section 45-222 when so amended shall read as follows: . . . " It is evident that the General Assembly intended to change only the amount 102 to be. charged for non-resident fishing licenses. The amount of compensation for license agents is not considered in the act, and it is therefore my opinion that act No. 842 (Ga. Laws 1952, p. 258) does not affect the amount of compensation provided for license agents selling non-resident fishing licenses and that such compensation remains the ii\ame as is presently provided. GAME AND FISH-Transportation of Dome~>tic Pets (Unofficial) The game and fish laws do not prohibit the transportation of two pet birds within this state. February 26, 1952 Mr. H. Frost Bailey You ask whether or not it is legal to transport two pet birds within the State of Georgia. I am inclined to think that your client has reference to Code Section 45-301307, inclusive, which make it illegal to purchase, sell, and transport certain wild game. It is, of course, my unofficial view that these sections would not apply in the case of a person who is transporting two pet birds which he had domesticated. Therefore, I believe you can safely advise her that she would encounter no difficulties in transporting her pet birds through Georgia. GAME AND FISH-Oyster Bed Leases The Game and Fish Commission can legally execute oyster bed leases subject to the conditions stated. April 3, 1952 Honorable Fulton Lovell Director, Game and Fish Commission You ask that I advise you if your Department can legally execute oyster bed leases. The General Assembly has provided a method of procedure for leasing oyster beds or bottoms other than natural or privately owned beds or bottoms under the following statutory provisions: "45-801. It shall be lawful for the Commissioner of Game and Fish to lease to any citizen of this State, or to any corporation chartered under the laws of this State and having its principal shucking plant or canning factory in this State, portions of the oyster beds or bottoms, other than natural or privately owned beds or bottoms, for a period of not exceeding 20 years, with the privilege of renewal at such rate as may be prescribed by the Commissioner, but in no event shall any person, firm, corporation, or combination of persons, lease or hold in excess of 1,000 acres, not to consist of more than two parcels, nor have the privilege of this section until he shall have demonstrated to the Commissioner his willingness, ability and intention to comply with the laws, as well as the rules and regulations prescribed by the Commissioner of Game and Fish for leasing and cultivating oyster beds. The owners of lands having water fronts thereon suitable for planting oysters shall have prior rights over all other applicants for assignment and lease of oyster planting-grounds adjacent thereto. All applications for lease of land under this law shall be made on blanks to be prescribed by the Commissioner of Game and Fish and shall be sworn to by the applicant. Each application shall be accompanied by a deposit of $10 as a guarantee of good faith, and to apply on cost of survey. Notice of such ap- 103 plication shall be published once a week for four weeks in the official newspaper of the county or counties in which such lands lie four weeks prior to making such application. If no good cause shall be shown to the contr-ary, the Commissioner may have said ground surveyed and a plat made thereof, and grounds marked off, at the cost of the applicant, at the time the survey shall be made, and at the direction of the surveyor, with suitable stakes, smooth and free from snags and spurs and suitable stakes shall be kept by the lessee in their proper places during the continuance of such lease, so as to conform accurately to the survey. Should such stakes be removed, rot down, or be carried away, the lessee shall replace them at his own expense in their proper places, and if he shall fail to do so within 30 days after being notified by the patrolman of the district within which the ground lies, the said lease shall be forfeited. (Acts 1924, p. 105; 1931, p. 7)." "45-802. The survey and plat of any assignment, as soon as practicable after it is made, and after said grounds shall have been assigned to said applicant, shall be delivered to said applicant, who shall record the same in the office of the clerk of the superior court of the county or counties in which said ground lies, and a copy thereof shall also be filed in the office of the Commissioner of Game and Fish. The surveyor surveying such tract so assigned shall make plats of such surveys for such office, and for the person to whom such assignment is made. Such plat shall be duly recorded in such office in a wellbound and substantial book, and indexed in the name of the assignee. The clerk of the superior court shall receive for recording the same in his office the fee now required for recording deeds and plats. The annual rental of land leased under this section shall be such amount per acre as the Commissioner may fix upon, but in no case less than 25 cents per annum, and shall be due on the first of September of each year after the date of the assignment, and payable on or before the first day of November following. If not paid on or before November first, a 25 per cent fine shall be added, and the inspector of such district shall proceed to levy for rental and fines. The lessee shall be required to deposit under the supervision of the inspector of his district within such time as may be designated by the Commissioner in his lease, shells or oysters to the amount of not less than 10 nor more than 1,000 bushels per acre for the entire area leased, the amount to be fixed by the Commissioner. The lessee shall be required to deposit, under the supervision and direction of the Commissioner of Game and Fish, every year during the life of the lease, a number of bushels of shells or oysters on each acre of the tract or parcel of ground leased by him, equal to 25 per centum of the number of bushels of oysters taken by him therefrom. The lessee shall be required to prove compliance with both of these provisions as to deposit or shells or oysters on the ground so leased by him and in default of such proof thereof the lease shall be annulled. (Acts 1924, p. 106; 1931, pp. 7, 14)." "45-803. Any person who shall have planted oysters in good faith on lands prior to August 8, 1924, shall have the first option or refusal to have said land leased to him by the Commissioner of Game and Fish, who shall take the fact into consideration in fixing the lease fee to be charged. (Acts 1924, p. 107; 1931, pp. 7, 14)." "45-804. It shall not be lawful for any person to stake in or use, for the purpose of propagation of oysters or shellfish, any natural oyster bed, dock, shoal or bottom, or clamming or crabbing ground which has not been assigned to him according to law, nor shall any person who may have occupied and staked off such natural bed, rock, or shoal, or clamming or crabbing ground, or bottom, which has not been assigned to him according to law, continue to occupy the 104 same, and any person violating this provision shall be guilty of a misdemeanor. Said person shall be notified by the Commissioner of Game and Fish to remove all stakes, watchhouses, or other obstructions from such natural beds, rock, or shoal; and if after the notice such person shall refuse to remove such stakes or other obstructions, the same shall be removed by the said Commissioner of Game and Fish or patrolman, at the cost of the offender, who shall also be punished as for a misdemeanor. (Acts 1924, p. 107; 1931, pp. 7, 14)." "45-805. When from any resurvey of oyster planting-grounds or survey made to reestaplish the lines of the State survey of natural oyster beds, rocks, or shoals, which may be made under the direction of the Commissioner of Game and Fish, it shall appear that any holder, without his own default and by mistake of any officer of the State, has had assigned to him and included in the plat of his assignment any portion of the natural oyster beds, rocks, or shoals, as defined by law, and it shall appear that any such holder has oysters or shells planted on the said ground, before the stakes shall he removed from said grounds, or the same opened to the public, the said holder shall be allowed a reasonable time, the length of which shall be determined by the Commissioner of Game and Fish in his discretion, within which to remove his planted oysters or shells from the said ground, under the supervision of the Commissioner. (Acts 1924, p. 107; 1931, pp. 7, 14)." "45-806. Any patrolman or surveyor who shall knowingly assign to any person any ground within the public survey of the natural oyster beds, rocks, or shoals, or clam beds that have been set aside by the Commissioner of Game and Fish shall be fined not less than $100 nor more than $500, and any such assignment shall be void, and such official shall be discharged from the employ of the Department of Game and Fish. (Acts 1924, p. 108; 1931, pp. 7, 14)." "45-807. Any person who shall wilfully injure, remove, or displace any boundary oyster stakes, range monuments, signal beacon, boundary stone or post, or buoy, or any appurtenance or enclosure therein erected, constructed or set by the Commissioner of Game and Fish, or by his order, on the land or water of this State or upon the lawful beds of any lessee for the purpose of designating, locating, surveying, or mapping any shellfish grounds, shall be guilty of :a misdemeanor. (Acts 1924, p. 108; 1931, pp. 7, 14)." "45-808. Any person, firm or corporation owning private oyster beds in tidewater Georgia may come under the provisions of this law and have the same protection as is afforded the lessees of State-owned oyster grounds under the provisions of this law, by planting oysters upon such grounds and placing oysters or shells thereon in the manner prescribed for leased oyster lands under the provisions of this law. (Acts 1924, p. 112)." Your attention is specifically called to subsection (a) of Section 45-820 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, quoted below, which provides that a certificate of the State Department of Public Health be obtained by the person proposing to lease oyster beds and bottoms, as provided by law, that the area proposed to be leased is uncontaminated. This certificate and other data shall be obtained and furnished to the Director of the Game and Fish Commission before any lease contract shall be entered into. Sub-section (a) of Section 45-820 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, reads as follows: "The Director under the Game and Fish Commission in fixing the area which is or may be leased to any person by such Director, the Game and Fish Commission or any private owner to any other person, firm or corporation for the purpose of planting, growing, gathering, marketing, or selling of oysters, shell- 105 fish or crustaceans shall require that the applicant for any such lease furnish to the Department of Public Health charged with the responsibilities of maintaining the health of the citizens of this State, a plat or survey of the lands proposed to be leased, but no such lease contract shall be entered into or become effective until such Department shall issue its certificate, that the particular area in question is not contaminated in any way and that the waters on or adjacent to such area are not polluted or do not contain any matter which would make the taking of oysters, shellfish or crustaceans, in any way dangerous to the life or health of persons consuming oysters, crustaceans, or shellfish removed therefrom. Any oysters, shellfish or crustaceans removed from the area concerning which such certificate has not previously been issued, shall be subject to confiscation and immediate destruction by any authority of the State Game and Fish Commission as menacing the public health. Such certificate may be revoked upon subsequent findings by the Health Department." It is clear under the provisions of the above authorities that the State Game and Fish Commission is authorized to enter into leases with the persons numerated in Section 45-801 governing oyster beds or bottoms other than natural or privately owned oyster beds and bottoms for the period of time and annual rental as set forth in the above-cited statutory provisions, provided there are no existing valid leases in force covering the areas proposed to be leased at the present time. In such an event, leases could only be executed at the expiration of existing leases. No doubt there will ari.se in your mind the question of just what constitutes "natural oyster beds or bottoms," and in this connection I would suggest that you read the case of Jones et al v. Oemler, 110 Ga., beginning at page 202 and ending on page 223, which is a very lengthy decision of the Supreme Court of Georgia explaining and pointing out what constitutes natural oyster beds and bottoms owned by the State of Georgia. GAME AND FISH-Shrimp Netting (1) Under the act of 1952 (Ga. Laws 1952, p. 77) the State Game and Fish Commission is restricted from promulgating regulations permitting anyone to drag for shrimp with nets larger than ten feet in diameter in sounds, rivers, or within the three mile limit of Georgia. (2) The sounds and inland waters on the coast of Georgia are closed for commercial shrimping or fishing with power drawn nets until voted on as prescribed in the above act.. (3) Section 4 of the act above referred to does not reserve to the Game and Fish Commission powers to open and close sounds between March 16 and December 31 for commercial shrimping or fishing with power drawn nets. April 3, 1952 Honorable Fulton Lovell, Director State Game and Fish Commission You ask the following questions: 1. What restrictions are placed on the powers of the State Game and Fish Commission to regulate the taking of shrimp in the sounds, rivers, or within the three-mile limit of Georgia, by Sec. 1, Ga. Laws, 1952, p. 77-Act No. 609? 2. Are the sounds or inland waters on the coast of Georgia closed for commercial shrimping or fishing with power drawn nets, until voted upon as provided in Sec. 3, Ga. Laws, 1952, p. 77-Act No. 609? 3. Is the Game and Fish Commission precluded from opening and closing 106 the sounds or inland waters for commercial shrimping or fishing by Sec. 3, Ga. Laws, 1952, p. 77-Act No. 609, though regulatory powers are reserved by Sec. 4, Ga. Laws, 1952, p. 77-Act No. 609? In answer to the first inquiry, it is my opinion that between January 1, and March 15, inclusive, the Game and Fish Commission is restricted only from promulgating regulations permitting anyone to drag for shrimp with nets larger than ten feet in diameter at the widest part of the mouth of the net in the designated waters. Section 1 reads as follows: "Section 1. It is hereby unlawful in this State to drag a net larger than ten feet in diameter at the widest part of its mouth for the purpose of tak'i'ng shrimp in the sounds, rivers, or within the three mile limit of Georgia between January 1st and March 15th inclusive." When construed with other sections of the act, (Ga. Laws, 1952, p. 77, Act No. 609), Section 1 does not prohibit non-commercial shrimpers from dragging nets for shrimp; provided, the nets are not larger than that set out in Section 1. In answer to the second inquiry, it is my opinion that Section 3 (Ga. Laws, 1952, p. 77, Act No. 609) closes all sounds and inland waters on the coast of Georgia for commercial shrimping or fishing with power drawn nets until a majority of the qualified voters, voting in a petitioned election in the county wherein the waters lie, approve the opening of the sounds and inland waters for purposes stated. The Game and Fish Commission must abide by the voters' decision. In answer to the third inquiry, I find that Section 4 (Ga. Laws, 1952, p. 77, Act No. 609) refers only to the taking of shrimp between ,March 16, and December 31, and not to the taking of shrimp or fish for commrcial purposes as found in Section 3 of the act, which reads in part as follows: "Section 3. Be it further enacted that before any sounds or inland waters on the coast of Georgia be opened for commercial shrimping or fishing with power drawn nets for the purpose of taking shrimp or fish from said waters," Section 4 reads as follows: "Section 4. Provided however, that the provisions of this Act shall not prevent the State Game and Fish Commission from making and promulgating reasonable rules and regulations, regulating the taking of shrimp in the sounds, rivers, or within the three mile limit of Georgia, during the period of time between March 16 and December 31, inclusive." It is my opinion that the power to regulate the taking of shrimp as reserved in Section 4 is entirely exclusive of the power to open and close the sounds and inland waters, which power by Section 3 is given to the voters. I quote from Section 3 as follows: " .. that an election shall be first called in any one of said counties to determine the desire of the people of such county with respect to opening of said sounds and inland waters ... In the event a majority of the voters voting in said election vote for the opening of the sounds, it shall be the duty of the State Game and Fish Commission to declare said sounds open for commercial shrimping and fishing. If a majority of the voters voting in said election vote against opening of the sounds for commercial fishing and shrimping, it shall be the duty of the State Game and Fish Commission to keep, said sounds and inland waters closed to commercial fishing and shrimping, and to enforce said order." Opening and closing sounds and inland water is a conservation procedure comparable to opening and closing game and fish seasons. These powers are distinguished from the power to regulate the method of taking shrimp or fish in Section 12 (Ga. Laws, 1943, p. 132), as amended, which reads in part as follows: 107 "The Commission shall have power to fix bag limits and to fix open and closed seasons, on a statewide, regional or local basis, as they may find to be appropriate, and to regulate the manner and method of taking fish, shellfish, crustaceans . by rules and regulations ... " (Emphasis Supplied) Thus, it is seen that the act treats them as two separate powers, and as a practical matter, the need for regulating the method of taking shrimp or fish depends on whether or not the sounds and inland waters are opened for the named activities. Section 4 (Ga. Laws, 1952, p. 77-Act No. 609) does not reserve to the Game and Fish Commission powers to open and close sounds between March 16, and December 31; for commercial shrimping or fishing with power drawn nets. GAME AND FISH-Telephone Calls A member of the State Game and Fish Commission is not authorized to make telephone calls at the expense of the state, unless such cails are made either in the State Capitol offices of the commission or at other established offices of said commission. Honorable B. E. Thrasher, Jr. State Auditor September 8, 1952 I am pleased to acknowledge receipt of your request for an opmwn as to whether a member of the State Game and Fish Commission is authorized to incur expenses, chargeable to the state, for telephone calls, in addition to the per diem and transportation expenses provided for under Code Section 45-140. Article V, Section IV, Paragraph I of the 1945 Constitution of Georgia, relating to the State Game and Fish Commission, provides in part as follows: "The Commission shall have such powers, authority, duties, and shall receive such compensation and expenses as may be delegated or provided for by the General Assembly." The above provision of the Constitution is clear in limiting the compensation and expenses of members of the State Game and Fish Commission to those provided for by the General Assembly. Section 45-140 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, relating to the compensation and expenses of members of the State Game and Fish Commission, provides in part as follows: "The members of the Commission, including the Chairman, shall each receive $7 for each day of actual attendance of meetings of the Commission at such desiguated places, and actual cost of transportation to and from the place of meeting and their respective homes by the nearest practicable route not to exceed five cents per mile. The members of the Commission, including the chairman shall receive while on committee assignment $7 for each day of actual service and actual cost of transportation to and from the place of service and their respective homes by the nearest practical route, not to exceed five cents per mile. Such per diem and travel expenses shall be paid from funds of the Commission. The Commission shall meet at such times and at such designated places in this State as it may determine and it may convene in called session upon: call by the chairman or by a majority of the members of the Commission." In exercising the authority given under the above-cited constitutional provision, the General Assembly provided that the members, including the chairman of the State Game and Fish Commission, shall receive $7 for each day of actual 108 attendance of meetings of the Commission, and actual costs of transportation to and from the place of the meeting and their respective home by the nearest practicable route, not to exceed five cents per mile. The same compensation and cost of transportation is allowed the members of the Commission while on committee assignments. In view of the fact that the General Assembly has only provided for a maximum of $7 per day of actual attendance of meetings of the Commission, and while on commission assignments, and the actual cost of transportation to and from the place of meeting of the Commission or committee assignment, and has not provided for any other expenses, it would not be legal and proper for the State to compensate a member of the State Game and Fish Commission in any manner, directly or indirctly, for such telephone calls, under the foregoing Code Section. Section 30, sub-section (b) of the General Appropriations Act provides as follows: "(b) For cost of operating Game & Fish Commission ______:________$625,000.00" On the other hand, in view of the above provision of the General Appropriations Act, it must be assumed that General Assembly intended for the State Game & Fish Commission to use such funds for the transaction of official business of the Commission. Therefore, it is my further opinion that a member of the State Game & Fish Commission, acting in his official capacity, and upon official business, would be authorized to use an existing telephone facility either in the State Capitol offices of the State Game & Fish Commission, or at any other regularly established branch office of said Commission to communicate between such offices for the transaction of official business of the Commission, provided the State Game & Fish Commission had not promulgated a rule or regulation prohibiting the use of such facilities, and such use of said existing telephone facilities was in accordance with budgetary regulations of the State Budget Bureau. GEORGIA COMMISSION ON ALCOHOLISM-Candler Property The conveyance to the state and the Georgia Commission on Alcoholism of the Candler property is approved. July 14, 1952 Honorable Paul Fraser Executive Director Georgia Commission on Alcoholism You request me to advise you on the following questions: 1. Under your telephone authorization, the Chairman and Executive Director of this Commission are authorized to sign the contract conveying the Candler property to the Commission and to the State of Georgia. Would this be binding on the State of Georgia to build a general hospital at a future date on the Candler property as outlined in contract, copy of which is in your office'! 2. What official or represntative of the State Government would be authorized to sign this contract for the State of Georgia. In answer to question number 1, it is my opinion that with proper authorization from the full membership of the Georgia Commission on Alcoholism, the Chairman and Executive Director of the Commission would be authorized to sign the contract jointly with the Governor as it relates to the acquisition of the 109 property for the purposes designated in the act of the General Assembly creating the Commission. In answer to question number 2, the Governor would be the only official authorized to sign the contract as to any commitments relating to the construction of the General Hospital, and any such commitments would be subject to ratification and appropriations by the General Assmbly of Georgia. GEORGIA COMMISSION ON ALCOHOLISM-Deeds-Reversionary Clause Under the facts in the instant case, state funds could not be used to improve property deeded to the state containing reversionary clauses which would result in the state losing the value of any capital improvements placed thereon. April 29, 1952 Mr. Paul H. Fraser Executive Director Georgia Commission on Alcoholism I am pleased to acknowledge receipt of your letter with which you transmitted a warranty deed dated April21, 1952 from Mildred P. Sheats to the Georgia Commission on Alcoholism. This deed purports to convey certain land described therein located in Jackson County, Georgia with two reversionary clauses providing that upon the happening of either event the property would revert to the grantor. You ask that I advise you if this deed gives sufficient title which would justify the legal expenditure of state funds in the construction of buildings by your Commission. I note that there is no consideration named in the deed, however this is of secondary importance in view of the main point upon which my position is premised. It is my opinion that under the reversionary clauses contained in the deed submitted, there is a possibility that state funds could in the future be lost through the happening of the events specified in said clause. Therefore, it is my view that state funds could not be used to improve the property to be conveyed to the state under the terms of the proposed deed as now drawn. I would suggest that you obtain a warranty deed in fee simple without reversionary clauses. GEORGIA COMMISSION ON ALCOHOLISM-Out-of-State Patients The Georgia Commission on Alcoholism is not authorized to accept out-ofstate patients, notwithstanding the fact that such patients desire to pay for treatment. October 2, 1952 Honorable Paul H. Fraser Executive Director Georgia Commission on Alcoholism You request that I give you my opmwn as to whether or not the Georgia Commission on Alcoholism can accept for treatment patients from other states if it has the proper facilities and personnel, and such patients pay the state the full cost of treatment. , Section 88-807a of the 1933 Annotated Code of Georgia, 1951 Cumulative 110 Pocket Part, relating to the duties of the Georgia Commission on Alcoholism, provides in part as follows: " ... The Commission is hereby authorized to establish and maintain hospitals, clinics, institutions, out-patient stations, farms, or other facilities for the care, custody, control, detention, treatment, employment and rehabilitation of alcoholics, and is further authorized to accept the care and custody of alcoholics voluntarily applying for treatment ... as hreinafter provided, ... " Section 88-815a of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, relating to the acceptance of voluntary patients by the Georgia Commission on Alcoholism, provides as follows: "The Commission may receive as a patient for treatment any alcoholic resident of this State who shall voluntarily apply to be received by the Commission for treatment and may retain for not more than one year and treat and restrain such person in the same manner as if committed by order of court; Provided, however, that such person must be released within 15 days after receipt in writing of notice from such person of his or her intention or desire to leave." Under the above-cited provisions of the act creating the Georgia Commission on Alcoholism, you will note that your Commission is restricted to receiving voluntary patients to those who are residents of the State of Georgia. Therefore, it is my opinion that the Georgia Commission on Alcoholism would not be authorized to receive voluntary patients for care, custody, control, detention, treatment, employment and rehabilitation who are not residents of the State of Georgia. HOLIDAYS-Flag (Unofficial) The legal holidays in Georgia are stated; the laws relating to the Confederate flag are stated. April 16, 1952 Mr. James Francis Miller You request information regarding the legal holidays in Georgia, and the statutes relating to the Confederate Flag. The public and legal holidays in Georgia are set out in Section 14-1809 of the 1951 Cumulative Pocket Part of the Annotated Code of Georgia. That section reads as follows: "The following days are declared to be public and legal holidays in Georgia: The first day of January, known as New Year's Day; the 19th day of January, known as Lee's Birthday; the 22nd day of February, known as Washington's Birthday; the 26th day of April, known as Memorial Day; the 3rd day of June, known as Jefferson Davis' Birthday; the 4th day of July, known as Independence Day; the first Monday in September, known as Labor Day; the 12th day of October, known as Columbus Day; the 11th day of November, known as Armistice Day; the fourth 'Thursday in November, known as Thanksgiving Day; and the 25th day of December, known as Christmas Day, and any day proclaimed or designated by the Governor of the State of Georgia or the President of the United States as a day of fasting and prayer or other religious observance, and the same are hereby declared public and legal holidays in the State of Gorgia: Provided, that, whenever any public or legal holiday enumerated in this section shall fall upon a Sunday, the Monday next following shall be observed as a public and legal holiday." The law relating to Confederate Flags is set out in Sections 86-702 and 86-704 111 of the 1951 Cumulative Pocket Part of the Annotated Code of Georgia. Those two sections reads as follows: "86-702. Confederate flags; preservation of.-The flags of the Georgia troops who served in the Army of the Confederate States, and which have been returned to the State by the 1Jnited States Government, shall be preserved for all time in the Capitol, as priceless mementos of the cause they represented and of the heroism and patriotism of the men who bore them." "86-704. Duty of Governor to accept flags.-When any such flag shall be offered to the State, it shall be the duty of the Governor to accept it in behalf of the State, and to make such provisions for its preservation as may be necessary to protect and preserve it from the ravages of time, dust and moths." HOSPITAL AUTHORITIES-Social Security Coverage for Employees (Unofficial) If the employees of the Bulloch County Hospital are not employees of the county or state, they may come under Social Security without the necessity of a contract with the State Employees Retirement System; if said employees are employees of the county, a contract must be made with said System; and if said employees are employees of the state, they are, under exi.sting laws, ineligible for Social Security benefits. January 23, 1952 Honorable F. Everett Williams In response to your request for a bill enabling employees of the Bulloch County Hospital to come under Federal Social Security, may I advise as follows: The original Social Security Act appearing in the U. S. Code excluded all state employees from its benefits. (U. S. C. 42-409, b. 7). However, an amendment to an act passed in 1950 and appearing as 42-418 of the 1951 supplement to the U. S. Code Annotated allows states to contract with the Federal Security Administrator for placing employees of such states and their political subdivisions under Social Security. Pursuant to this amendment, the General Assembly enacted a law at the 1951 session authorizing the employees of counties and municipalities of this state to enter into such contracts with the Federal Security Administrator through the State Employees Retirement System, the state agency charged with the administration of this law in addition to its duties of administering state retiremen laws. (Georgia Laws 1951, p. 457). No provision was made in this act for state employees. Thus, the question is whether employees of the Bulloch County Hospital Authority are to be deemed employees of the State, Bulloch County, or an independent corporation. If they can be construed to be employees of an independent corporation they may come directly under the act without the necessity of a contract with the State Employees Retirement System. If they can be construed to be employees of Bulloch County, they may come within the Social Security Act by contracting with the State Employees Retirement System. However, if they are deemed employees of the state, there is no way by which they could presently come within the Social Security Act, since there is no constitutional or statutory authority under which state employees may come under that act, and if such authority did exist, section 42-418 (d) of the 1951 supplement to the U. S. Code Annotated would apply, requiring such employees to give up any benefits for which they might be eligible under state retirement laws. Of course it should be pointed out that benefits under state retirement laws are greater 112 in many respects than those accorded under Federal Social Security, and most state employees would therefore probably prefer to remain under state retirement. My suggestion would be that the Bulloch County Hospital Authority apply to the Honorable Frank DeLamar, Director of the State Employees Retirement System, 20 Ivy Street, S. E., Atlanta, Georgia, for a contract placing its employees under Social Security. Before granting such application, Mr. DeLamar will necessarily have to decide the question set forth above. What his decision will be I cannot foretell, but this should be your next move in having the question legally resolved. Of course you realize that :final decision of this question could be made only by the courts, should you disagree with the decision rendered by Mr. DeLamar. At any rate, in my opinion, no local legislation could be enacted by the General Assembly at this time to place such employees under Social Security. If they can qualify under existing law no legislation is necessary, and if they cannot qualify under existing law, a constitutional amendment as well as general enabling legislation would be required. HOSPITAL AUTHORITIES-Limitation on Taxation (Unofficial) Emanuel County is without authority to levy a tax exceeding 5 mills for the support of its hospital. Honorable Felix C. Williams August 13, 1952 You state that Emanuel County has a Hospital Authority which is operating the new Emanuel County Hospital. You request my opinion as to whether Emanuel County may levy a tax exceeding five mills for the purpose of supporting this hospital. Section 99-1512 of the Annotated Code of Georgia reads as follows: "An authority shall have no power to tax, but upon the adoption of the resolution by the governing body or bodies of participating units or subdivisions as herein provided and the execution of a contract for the use of facilities or services of the authority by political subdivisions or participating units as here- inafter authorized, provision shall be made annually by such participating units or political subdivisions contracting with an authority for the payment for the services or facilities of the authority used by the participating units or subdivisions or the residents thereof out of general funds of the participating unit or subdivision or out of tax revenues realized for the purpose of providing medical care or hospitalization for the indigent sick and poor. For the purpose of provid- ing such tax revenues there is hereby authorized to be levied an ad valorem tax not exceeding five mills exclusive of all other taxes which may be levied by counties or by cities or towns which have executed contracts with hospital authorities, from which revenues when realized there shall be appropriated annually sums sufficient to pay for the cost of the use of the services and facilities of authorities by participating subdivisions or the residents thereof pursuant to the contract between such participating units and subdivisions and an authority." The Act from which the above section is codified was passed in 1941 (Ga. Laws 1941, p. 241). You will note that this section states that the tax levied thereunder shall not exceed five mills. In 1938, a constitutional amendment was enacted which authorized the county to levy a tax to provide medical and other care and hospitalization for the indigent sick people of the county (Ga. Laws 1937-1938 Extra Session, p. 39). This amendment was ratified at the General Election in 1938. Pursuant to that constitutional authorization, an Act was 113 passed in 1939 amending Section 92-3701 of the 1933 Code of Georgia so as to add the provision that counties could levy a tax to provide medical or other care and hospitalization for the indigent sick people of the county not exceeding one mill. This was in line with the case of McGregor v. Hogan, 153 Ga. 473. Headnote 2 of that case reads as follows: "Under art. 7, sec. 6, par. 2, of the constitution of the State, the objects for which taxation may be levied by a county are enumerated, but there is no limitation in the constitution upon the taxing power of a county in regard to the amounts to be levied for these authorized purposes; the amount to be levied for each purpose is under legislative control." The Supreme Court, in the case of DeJarnette v. Hospital Authority of Albany, 195 Ga. 189, made the following statement on page 202: "Both the hospital authorities law and the act of 1939 providing for a one-mill tax for that purpose, are general laws, the only difference being that counties not operating under the hospital-authorities law can only levy a one-mill tax for the purpose of providing medical care and hospitalization for the indigent sick, whereas if they operate under the hospital-authorities law such counties may levy a five-mill tax." This case was decided on December 3, 1942 when both the act authorizing the one mill levy and the Hospital Authority act authorizing a five mill levy were in effect. The 1945 Constitution, in Article VII, Section IV, Paragraph I (Code Section 2-5701), set out the purposes for county taxation. The General Assembly in 1946 (Ga. Laws 1946, p. 87) amended Section 92-3701 of the Code so that it would follow the provisions of the new Constitution as set out in the above-cited constitutional provision and in the provision relating to taxation for a teacher retirement system (Code Section 2-5502) . In passing this act, the General Assembly specifically repealed the 1939 act limiting the tax levy for medical and hospital care of the indigent sick to one mill and evidently this leaves no limitation thereon. I am of the opinion that the theory of the heretofore quoted portion of the DeJarnette case, supra, would still apply even though the exact figures have changed. Section 99-1512 relating to the five-mill limitation under the Hospital Authority Act is still in effect. It seems evident that merely because the one-mill levy has been repealed this would work no change upon the levy of those counties operating under the Hospital Authority Act. I feel that the Supreme Court would be constrained to hold that counties not operating under the Hospital Authority Act are no longer subject to the one-mill limitation inasmuch as the act making provision therefor has been repealed, but that those counties operating under the Hospital Authority Act are subject to the five-mill levy inasmuch as that act is still in full force and effect. I can see no reason why the Supreme Court would change the theory of its decision. HOSPITAL AUTHORITIES-Limitation on Taxation (Unofficial) The act referred to has not repealed the five mill limitation referred to in the preceding opinion. Honorable Felix C. Williams You state in your letter as follows: August 18, 1952 "In 1946, Georgia Laws, page 87, the General Assembly amended Section 92-3701 of the Code and in passing the amendment, especially repealed the Act of 1941 approved March 27, 1941 relating to the purposes for which counties may levy taxes. The Act of 1941 relating to taxes is embodied in Code, Section 114 99-1512. In view of this, the law may have repealed the 5 mill limitation and if it did, counties may now levy any number of mills necessary for the support of hospitals. If the Act of 1946, page 87, did expressly repeal the Act of 1941, approved March 27, 1941, the 5 mill limitation would not be in existence." The first part of Section 1 of the Act of 1946 reads as follows: "Section 1. From and after the passage of this Act, Section 92-3701 of the Code of Georgia of 1933, as amended by the Act of 1937-38, Extraordinary Session of the General Assembly, approved December 24, 1938; the Act of 1939, approved February 21, 1939; the Act of 1939, approved March 24, 1939, and the Act of 1941, approved March 27, 1941, relating to the purposes for which counties may levy taxes, be, and the same is hereby amended by striking said Section as amended in its entirety, and substituting in lieu thereof a new section, to be known as Section 92-3701, Purposes of county tax in general, reading as follows, to-wit:" You will note that it provides that Section 92-3701, as amended by these acts listed, is to be further amended. The Act from which Section 99-1512 is codified is the Hospital Authorities Act approved March 27, 1941 (Ga. Laws 1941, p. 241). This Act did not in any manner amend Section 92-3701. The 1941 Act, referred to in the Act of 1946, is one which authorized the counties to levy taxes for the conservation of natural resources. This Act may be found in Georgia Laws 1941, p. 318. You will note that this likewise was approved March 27, 1941. You will also note that it amended Section 92-3701 and there can be no doubt that it is the Act which is listed in the 1946 Act. HOSPITAL AUTHORITIES-Conveyance to County or City Subject to the conditions stated, hospitals owned by county or municipal hospital authorities may legally be conveyed to the counties or municipalities and thus be exempt from payment of the state sales tax on purchases. Honorable Herman E. Talmadge Governor, State of Georgia February 25, 1952 You ask the following question: "May hospitals operated by county or municipal Hospital Authorities, receiv- ing aid under the Hill-Burton Act, be conveyed to counties or municipalities and thus be exempt from the payment of the State Sales Tax on purchases?" Section 99-1505 of the Annotated Code of Georgia reads in part as follows: "Every authority shall be deemed to exercise public and essential govern- mental functions and shall have all of the powers necessary or convenient to carry out and effectuate the purposes and provisions of this Chapter, including, but without limiting the generality of the foregoing, the power: ... to sell, lease, exchange, transfer, assign, pledge, mortgage or dispose of any real or personal property or interest therein ..." The Hill-Burton Act ("Hospital Survey and Construction Act"), 42 USCA 291 et seq., does not itself prohibit the conveyance of such property. Some difficulty might arise, however, over the question of the assumption of liabilities. If the county or municipality were required to assume the obligations of the authority, there is the possibility that the provisions of Article VII, Section VII, Paragraph I of the Constitution of 1945 might be violated. Section 3(c)2(d) of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360) exempts from such tax sales to the State of Georgia in any county or municipality of said state. In an unofficial opinion to Honorable E. S. Sell, Jr., dated May 30, 1951, I advised that the Macon 115 Hospital, authorized in the charter of said city, and owned and supported as a part of the city itself, was exempt under this section from payment of the sales and use tax. Therefore, I reach the conclusion that hospitals operated by county or municipal Hospital Authorities, receiving aid under the Hill-Burton Act, may be conveyed to counties or municipalities, and purchases by such hospitals would then be exempt from the sales and use tax, provided that such hospitals are owned and supported by the county or municipality and the title to all equipment and supplies purchased is in the county or municipality. If any such conveyance is contemplated, I suggest that the Surgeon-General of the United States should be consulted in connection therewith. HOSPITAL AUTHORITIES-Conveyance of Property by Valdosta The City of Valdosta has authority to convey unimproved lands owned by it and acquired with money raised by the issuance of bonds for park purposes, to the Hospital Authority of Valdosta and Lowndes County. Dr. T. F. Sellers, Director Public Health Department June 16, 1952 You request my opinion on the following question: "Does the City of Valdosta have authority to convey unimproved land owned by the City and acquired with money raised by the issuance of bonds 'for park purposes' to the Hospital Authority of Valdosta and Lowndes County for the erection thereon of a City-County hospital by the Authority?" You state that the hospital is to be constructed with funds obtained under the Hill-Burton Act (42 USCA 291) which requires title to be vested solely in the applicant, the Hospital Authority. No question is raised regarding the title in the City of Valdosta, and the only question is that of its authority to convey the property. Sec. 1 of the Act incorporating and chartering the City of Valdosta (Ga. Laws 1901, p. 670) provides in part as follows: "... and the said City of Valdosta shall be capable in law to purchase, hold, enjoy, receive, possess and retain in perpetuity, or for any term of years, any estate or estates, real or personal, lands tenements, hereditaments of any kind whatever within or without the corporate limits of said city for corporate pur- poses, and to sell, alien, exchange or lease the same or any part thereof; " The charter thus authorizes the City to "sell" or "alien" property held by it for corporate purposes. The commonly accepted definition of alien is the volun- tary conveyance of property either by bargain and sale or by gift. It would seem under this charter provision that the City might give the property in question to the Authority. Nevertheless, there can be no doubt as to its authority to sell such property. The consideration as cited in the deed from the City to the Authority is "One Dollar and other good and valuable consideration." In the case of Stanley v. Schwalby, 162 U. S. 255, the benefit to be derived by the public in a similar transfer of property was held to be a good consideration. In the case of Adams v. Rome, 59 Ga. 766, the Supreme Court held the City of Rome under charter provisions similar to those quoted above to have power to mortgage certain public property, and in the case of Byrd v. Alma, 166 Ga. 510, the Court held that such a charter provision authorized the sale of municipal property without the necessity of submitting the question of sale to the voter.s of that city. 116 It further appears that the City of Valdosta has made no dedication of the property in question to park purposes, and therefore no irreparable damages as contemplated in the case of Pettitt v. City of Macon, 95 Ga. Rep. 645, can occur. In view of the above authority and Section 69-203 of the Georgia Code of 1933 providing: "Equity will not interfere with discretion of counciL-The council or other governing body of a municipality has a discretion in the management and disposition of its property, and where it is exercised in good faith, equity will not interfere therewith. (75 Ga. 433).", I am of the opinion that the City of Valdosta does have authority to make such a conveyance under the authority given by the General Assembly in chartering said City, and that a deed from the governing body of Valdosta would vest title in the Hospital Authority as required by the Hill-Burton Act without the necessity of further legislative action. HOUSING AUTHORITIES-Compensation of Commissioners Under existing law the commissioners of local Housing Authorities may not receive any compensation for their services. January 30, 1952 Honorable Harry E. Williams Representative, Cobb County You request that I advise you if it would be possible under existing law to pay commissioners of a local housing authority $50.00 for each meeting. Your attention is called to the provisions of Section 99-1111 of the 1933 Annotated Code of Georgia, 1951 pocket supplement, which relates to compensation and expenses of commissioners of local housing authorities, and which provides: "A Commissioner shall receive no compensation for his services, but he shall be entitled to the necessary expenses, including travelling expenses, incurred in the discharge of his duties." The above Code Section is codified from the Acts of 1937, pages 210, 217, as amended by the acts of 1951, pages 612, 614. The above provision of law clearly states that such commissioners shall receive no compensation for their services as such members. However, such members would be entitled to the actual expenses, including travelling expenses, which they would incur in the discharge of their duties as such commissioners. The "Housing Authority Law" was created by an act of the General Assembly in 1937 and, therefore, there is no legal reason that I know of that would prevent the General Assembly of Georgia from amending this act and providing such compensation as they may deem wise and advisable, keeping in view the purposes for which the Act was created. HUSBAND AND WIFE-First Cousins (Unofficial) Georgia law does not prohibit the marriage of first cousins. Honorable Floyd Howard Skinner September 18, 1952 In answer to whether the statutes of Georgia permit the ma:r:riage of first cousins, our law provides as follows: "53-105. Marriages between persons related by affinity in the following manner are prohibited, viz.: A man shall not marry his stepmother, or mother-in-law, 117 or daughter-in-law, or stepdaughter, or granddaughter of his wife. A woman shall not marry her corresponding relatives. Marriages within the Levitical degrees of consanguinity shall be void. Marriages within the degrees prohibited by this section shall be incestuous." Levitical degrees of consanguinity referred to in the above quoted Section of the law are those set forth in Leviticus, Chapter XVIII, and marriage of first cousins is not prohibited under said chapter. In answer to your second question, Georgia has not adopted the "Uniform Marriage Evasion Act" and it is my understanding that the act was withdrawn by the Conference of Commissioners in 1943. HUSBAND AND WIFE-Marriage by Proxy (Unofficial) Marriages by proxy or telephone are illegal in the State of Georgia. December 9, 1952 Miss June Howell You ask my opinion as to whether you could be married by proxy in the State of Georgia to a man who is in Guam. It is my opinion that marriages by proxy or telephone are illegal in the State of Georgia. Code Section 53-201 of the Code of Georgia states that a marriage may be performed for persons named in a license. If one of the persons is not present, it is obvious that the minister or judge would not know whether or not he was marrying the persons named in the license. Also, I wish to call your attention to the fact that Code Section 53-9902 prohibits the intermarriage of white and colored people, and if one of the parties was not present, it is further obvious that the minister or judge performing the purported marriage would not know whether he was joining in marriage persons that might be white and colored. INDUSTRIAL RELATIONS-Compensation of Member of Board of Hevicw Members of the State Board of Review of the Department of Labor are entitled to their monthly compensation notwithstanding the fact that said Board does not hold a meeting for that particular month. January 29, 1952 Honorable BenT. Huiet Commissioner of Labor FACTS: The act of the General Assembly of Georgia, approved March 29, 1937 (Georgia Laws 1937, p. 806), created the Unemployment Division of the Department of Labor of Georgia and provided for an appellant tribunal called the Board of Review to consist of three members. The act further provided that "each member shall be paid from the Unemployment Administration Fund a compensation for his services to be fixed by the Governor of the State." The Governor in office at that time fixed the compensation for the three members of the Board of Review at $20.00 per diem. On January 8, 1945, the Governor took the matter di compensation for the members of the Board of Review under consideration and found that the nature of the duties imposed upon them required much informal work'in addition to the hearings that they attended. The Governor found that the acti:Ve:participation in the formal meetings of the Board of Review did not indicate the amount of work required in solving complicated legal and policy issues. 118 As a result of the Governor's investigation and consideration of these matters he concluded that the original $20.00 per diem compensation was inadequate and based upon an erroneous theory. The Governor entered an executive order dated January 8, 1945, providing that "Members of the Board of Review of the Department of Labor of Georgia, shall receive the monthly sum of $100.00 as compensation for their services on said Board, rather than the $20.00 per diem which the members heretofore have received." Although the regulations promulgated by the Board called for regular stated meetings and hearings on appeals when there are a certain number of appeals to be heard, the fact that some months there are insufficient appeals to warrant holding meetings for that month may cause the Board to forego formal hearings. This practice is an economy measure in that during those months when the number of formal hearings is small the expense entailed in getting the members together is saved. It appears that in two months during the calendar years 1950 and 1951 there were no formal meetings of the Board. QUESTION: Are the members of the Board of Review entitled to compensation of $100.00 for the two months during which no meetings were held? ANSWER: They are entitled to the compensation of $100.00 per month. By virtue of that portion of the act of 1937 (Georgia Laws 1937, p. 806), codified as Section 54-630 of the Georgia Code, Annotated, the Governor is authorized to fix the compensation of the members of the Board of Review for their services. Nothing in the act militates against the compensation fixed by the Governor by executive order, dated January 8, 1945, and it is my opinion that the members are entitled to be paid whether they hold a formal meeting or not. INSURANCE-Distribution of Dividends (Unofficial) There are no state laws governing the distribution of accrued dividends among members of a group life insurance plan. June 2, 1952 Mr. Stanley T. Martin Reference is made to your letter asking my unofficial opinion with respect to the distribution of accrued dividends on your Association's group life insurance plan. From your letter, I understand that your National Association has such a group life plan underwritten by the Columbian National Life Insurance Company of Boston, Massachusetts. I assume that this underwriting takes the form of a master group policy. I conclude from your letter that the underwriter has remitted to the National Association a sum of money representing accrual of dividends over the past three years and the National Association has in turn remitted to your local Unit the amount of $216.58 for the share of your local Unit and its members in these dividend accruals. I am without information as to the provisions of the contract with respect to payment of these dividends, but I assume that the method of payment outlined is in strict accord with the terms of the master policy. The primary question on which you ask my opinion is: What State laws and regulations of the Georgia Insurance Department control your Association in the distribution and use of these dividends? I have examined our statutes and have discussed the matter with the Deputy Insurance Commissioner and, on the basis of this study, I wish to inform you that there is no Georgia Statute or administrative regulation which in any manner 119 governs the situation. This conclusion is, of course, based on the assumption that the underwriter has discharged its liability according to the terms of the contract by the payment of dividends as made. It is entirely competent under Georgia law for the members of your local unit to enter into any agreement among themselves that they deem appropriate for the use and distribution of these funds. INSURANCE-Conversion of Fraternal Society to Stock Life Insurance Company. A fraternal benefit society desiring to be converted into a stock life insurance under applicable state law is not required to distribute its surplus to its certificate holaers. Honorable Zack D. Cravey March 3, 1952 Commissioner of Insurance Re: Acme Life Insurance Society, Conversion into Acme United Insurance Company. We understand that some question has been raised as to the necessity of a Fraternal Benefit Society distributing its surplus to its certificate holders upon being conver.ted into a stock life insurance company under our conversion statute found in Chapter 56-16A. The pertinent Code Sections are Code Sections 56-1606A, 56-1607A and 56-1612. These sections provide that every member shall have the right to sub- scribe for his prorata part of the stock in the converted company. They also provide that all of the property of the Fraternal Society of every character shall become the property of the converted stock life insurance company. They also provide, further, that such reorganized and converted stock life insurance company shall be deemed in law to be a continuation of such benefit society. Section 56-1612 expressly provides that no member shall have or acquire individual rights in the funds of a Fraternal Benefit Society or become entitled to any apportionment or surrender of any part therefor, except as provided in his policy or certificate. Section VIII of Article IV of the Constitution of this Fraternal Society expressly provides that no member shall have any individual rights in any of the funds of the Society. The Supreme Court of Alabama in the case of Hermione Lodge, Knights of Pythias of Decatur vs. Grand Lodge, Knights of Pythias of Alabama held that every member was governed by the terms of the Constitution of the Grand Lodge. See 168 A.L.R., page 948. It is therefore our opinion that it is not necessary, nor does our statute provide for a distribution of the surplus funds of Acme Life Insurance Society upon being converted into Acme United Life Insurance Company. INSURANCE-Regulation as to Military Reservation Insurance transactions conducted on military reservations belonging to the government, are not subject to regulation under the state insurance laws. September 3, 1952 Honorable Zack D. Cravey Insurance Commissioner In answer to your letter requesting an opinion as to the jurisdiction as to the 120 regulation of .a sale of insurance on military installations by your Department under Sections 56-502 and 56-519 of the 1933 Georgia Code, I refer you to the opinion of Honorable Ellis G. Arnall, then Attorney General, dated October 16, 1941, and reported in the opinions of the Attorney General of Georgia, 1941-43 Edition, at pages 109-115. The above opinion gives a very good treatment of the law and the opinion rendered therein remains the law, as I see it, today. Quoting from the opinion of Mr. Arnall, "Under the above cited authorities, I am of the very definite opinion that the insurance laws of this state have no force and effect with reference to transactions carried on and completed upon any of the lands of the Federal Government owned and operated as forts, arsenals or military reservations". You will note that the above opinion is based upon Government-owned property only and does not cover military installations not located on property owned by the Government. This distinction, I believe, would be relevant to you in the enforcement of the insurance laws of Georgia since some military operations are carried on in the State of Georgia on property which is not owned by the Federal Government and would, therfore, be under the exclusive jurisdiction of the State Government except as to the functions of the Government itself. In light of the above opinion, I believe that the question in your letter, whether there would be a distinction between matters covered under Section 56-502 and those covered under 56-519 of the Code of Georgia of 1933, is answered. INSURANCE--"Pall Bearer's Charitable Society" (Unofficial) Under the facts stated, the "Pall Bearer's Charitable Society" probably is engaged in the life insurance business, and will be subject to regulation. November 7, 1952 Mr. E. G. Musleh Your letter asks my approval of the operations of "Pall Bearer's Charitable Society" in the State of Georgia. Attached to your letter is a copy of the constitution of this organization, together with certain other printed material. From this information, I am not able to determine clearly the legal status of the organization but it seems to me that it proposes to engage in life insurance business within the meaning of the Georgia statute and is subject to regulation as such. I call your attention to the case of South Ge01rgia Funeral Homes, Inc. v. Harrison, 128 Ga. 60. In that case our Supreme Court decided in 1935 that the South Georgia Funeral Homes should be enjoined from the sale of option contracts because those contracts were in substance policies of life insurance. This company then changed its contract so as to make it, at least in form, an agreement to purchase in installments certain funeral merchandise. On October 16, 1936 our Supreme Court decided in South Georgia Funeral Homes, Inc. v. Harrison that the new contract was not a life insurance contract. At the ensuing session of our Legislature the definition of life insurance contracts was changed to read as follows: "56-901. Contract of life insurance defined.-A contract of life insurance is one whereby the insurer, for a consideration, assumes an obligation to be performed upon the death of the insured, or upon the death of another in the cont1nuance of whose life the insured has an interest, whether such obligation be one to pay a sum of money, or to perform services, or to furnish goods, wares, or merchandise or other thing of value, and whether the cost or value of the undertaking on the part of the insurer be more or less than the consideration flowing 121. to him. Every person, firm or corporation writing or issuing contracts of life insurance, as defined in this section, shall be deemed to be engaged in the business of life insurance and shall be subject to all of the provisions of the laws of Georgia regulating life insurance companies." An examination of the by-laws of the Pall Bearers Charitable Society, and particularly Article 5, Sec. 1, makes it clear that the Society undertakes to pay a sum of money upon the death of a member. It is my view that this provision falls within the statutory definition of life insurance and is subject to regulation as such. I call your attention to Chap. 56-16 of the Georgia Code, which purports to define fraternal benefit societies. I have not undertaken to determine whether the Pall Bearers Charitable Society is a fraternal benefit society within the meaning of this chapter. If it is such a society, then its regulations would be in accordance with the terms of this chapter. If not, in my opinion it would be subject to regulation as are other life insurance underwriters. Georgia Code, Chap. 56-4 provides for the issuance of licenses to non-resident insurance companies and prohibits them from transacting any insurance business in the State without such a license. INSURANCE-Premium Tax Abatement 1. A deposit of securities, assets of a foreign insurance company, made in a safety deposit box in this state, does not fix the situs of said property so as to be subject to taxation and thereby qualify the company for premium tax abatement. 2. Investments in bonds of the State of Georgia or any of its political subdivisions would qualify the insurance company for premium tax abatement under the laws. 3. Investments in shares of federal savings and loan associations of this state would qualify an insurance company for premium tax abatements under the laws. 4. The fact that an insurance company had one-fourth of its assets invested in the State of Georgia prior to December 31, 1952, would not entitled such insurance company for a premium tax abatement of 1% for that year, since the right to the abatement depends upon the taxability of the corporation, which factor is determined as of January first of the year in question. Hon. Zack D. Cravey Insurance Commissioner December 15, 1952 QUESTION: 1. By depositing securities, assets of a foreign insurance company, in a safety deposit box in a bank situated in Georgia, would such assets be legally considered as property situated in this State and taxable herein, and qualify said company for premium tax abatement under Sec. 92-2510 of the Code of Georgia? 2. Would investments in bonds of the State of Georgia or sub-divisions thereof qualify such insurance company for premium tax abatement under Sec. 92-2510 of the Code of Georgia? 3. Would investments in shares of Federal Savings and Loan Associations of the State of Georgia and other states qualify such insurance company for premium tax abatements under said section of the Code? 4. Would the premium tax of such insurance company for the calendar year ending December 31, 1952, be reduced to one per cent ( 1 o/o) if it should have 122 one-fourth of its assets invested in the State of Georgia prior to December 81, 1952? ANSWERS: 1. In answer to the first question propounded above, I would say that the mere fact that securities or evidences thereof are deposited in a safety deposit box in a bank in this state does not necessarily fix the actual or general legal situs of said property, nor does it fix the taxable situs of same. The securities referred to in this opinion are choses in action and are legally personal property and generally have no locality other than that of the person having the same in possession, ownership, custody or control. Clark v. Baker, 186 Ga. 77. Personal property in the absence of any law to the contrary follows the person of the owner and has its situs at the domicile of the owner. Lewis & Holmes Motor Freight Corp. v. City of Atlanta, et al., 195 Ga. 810. There are exceptions to this general rule whereby personal property is taxable other than at the domicile of the owner. Especially is this so as to intangible personal property which is defined in Sec. 92-113 of the Code which is as follows: "Intangible personal property is defined for the purposes of this law as capital stock of all corporations, money, notes, bonds, accounts, or other credits, secured or unsecured, patent rights, copyrights, franchises, and all other classes and kinds of property defined by law as intangible personal property whether or not enumerated in this definition and whether or not similar to those classes enumerated." The rule for fixing the taxable situs of the intangible personal property other than the domicile of its owner is set out in 92-121, which is as follows: "Persons subject to tax on .intangibles.-Every resident or non-resident person, including partnerships whose members are. in whole or in part nonresidents of this State, is declared to be subject to the tax imposed in this law [92-113 to 92-159, 92-9946] on so much of his property taxable under sections 92-116 to 92-122 as shall have been acquired in the conduct of, or used incident to, business carried on or property located in this State. Each such person shall report such property and pay taxes thereon as provided by law for citizens of this State. (Acts 1937-38, Ex. Sess., pp. 156, 160.)" The Supreme Court of Georgia elaborates on this rule in Suttles, Tax Collector, etc. v. Northwestern Mutual Life Insuran\ce Co., 193 Ga. 495. The second headnote, subdivisions (a) and (b) are as follows: "(a) Intangible property of a non-resident may be taxed in this State, consistently with the fourteenth amendment of the United States constitution and the similar or due-process clause of the constitution of Georgia, if it is so used as to become an integral part of some local business conducted by him or his agent. "(b) Where a non-resident corporation, a life insurance company, employed a loan agent in Georgia for the purpose of soliciting and submitting applications for loans and making reports concerning applicants and the proffered security, the agent being employed on a salary basis and having in this State a fixed office or place of business leased in his own name, but the rent of which was paid by the company through reimbursement to him on expense account, and in all negotiations in reference to loans the company dealt with applicants by communications passing through him as its agent, the notes and security deeds though prepared in the home office being sent to him for execution by applicants in this State, and, after their return to the home office and approval there, checks being mailed to him for delivery to applicants here, so that all loan contracts were thus finally executed in Georgia, and where as many as nineteen long term loans were so made during continuous existence of such agency, the company in making 123 such loans was conducting a loan business in Georgia, and thus came within its taxing power, as to property derived from or used in such business." Along the same line the Supreme Court had previously held in Armour Packing' C~. v. Clark, 124 Ga. 369, the headnote of which is as follows: "A New Jersey corporation with its principal office in Missouri had also a place of business in Richmond county, Georgia, in the charge of an agent of limited authority. The goods used in the business were shipped to Augusta from the Missouri headquarters, and were then sold, either in broken or unbroken packages. Some of the sales were on credit, and to parties living both in Georgia and South Carolina, the notes taken in the course of the business being forwarded to the principal office and paid either there or through the Augusta agency; and when the notes and accounts were collected in Augusta the amounts realized were sent immediately to the principal office. Held, that these notes and accounts were subject to State and county taxation in Richmond county." In view of the above and foregoing, I would say that in order for a nonresident or foreign insurance company to qualify for premium tax abatement under 92-2510 by investing in intangible personal property, such property, including stocks, bonds, etc., would have to be of the nature described in said section or in intangibles having its taxable situs in this state under the above rules. The latter part of this paragraph refers to "property situated in this State and taxable herein" referred to in said section of the Code. In answer to the second question propounded above, I would say that investments in bonds of the State of Georgia or sub-divisions thereof would qualify such insurance company for premium tax abatement under said section of the Code because said section specifically so states unconditionally. In answer to the third question propounded above, I would say that investments in shares of Federal Savings and Loan Associations of this state would qualify such insurance company for premium tax abatement and would be acceptable because said section specifically states that investments in property situated in this State and taxable herein would be an acceptable investment and as such shares are property in this State and taxable herein according to the provision of 92-115 of the Code of Georgia. Shares of Federal Savings and Loan Associations of other states would not qualify such insurance company for premium tax abatement under such section. In answer to the last question above propounded, I would say that the premium tax of such insurance company for the calendar year 1952 would not be reduced to one per cent (1o/o) unless it should have one-fourth of its assets invested in the State of Georgia on or before January 1, 1952. In order for said assets to be taxable for the year 1952, which is necessary for premium tax abatement under 92-2510 of the Code, such insurance company must own said invested property at its taxable date, to wit, January 1, 1952. INSURANCE-State Employees (Unofficial) Honorable Randall Evans October 7, 1952 You ask the following questions: "1. Have you recently made any rulings regarding the necessity or lack of necessity of a state employee carrying insurance or having a driver's license on state-owned vehicles? If so, what are the rulings? 2. Does a state employee have to own a driver's license in order to drive a 124 state-owned vehicle? 3. Does a state employee have to carry liability insurance under any cir- cumstances on a state-owned vehicle? 4. If a state employee's drivers license is revoked because of a violation of traffic regulations, may he continue to drive a state-owned vehicle with or without his license?" In response to question No. 1, I have issued no rulings regarding that subject. It is my personal view that the answer to question No. 2 is Yes, the answer to question No.3 is No, and the answer to question No.4 seems to me to be covered by the answer to question No. 2. LABOR RELATIONS-Union Shop (Unofficial) The union shop is not legal in Georgia. January 17, 1952 Mr. Paul M. Sossaman, Sr. You request information concerning the legality of a union shop in Georgia. I am pleased to call your attention to certain provisions of law which I suggest you discuss with your personal attorney, viz., Chapters 54-7 and 54-8 of the Cumulative Supplement to the Annotated Code of Georgia. I particularly call your attention to Section 54-902, which reads as follows: "Membership in labor organization as condition of employment.-No individual shall be required as a condition of employment, or of continuance of employment, to be or remain a member or an affiliate of a labor organization, or to resign from or to refrain from membership in or affiliation with a labor organization. (Acts 1947, pp. 616, 618.)" LEGISLATION-Population Acts (Unofficial) The population act referred to is probably constitutional as it does not undertake to "freeze" the counties affected. March 25, 1952 Honorable S. W. Fariss Your letter has reference to House Bill No. 848, approved February 15, 1952, relating to salaries for coroners in counties of Georgia having a population of not less than 34,000 and not more than 38,500, according to the present census of the United States or any future census. This act is one of a number of such acts usually referred to as a general statute with local application. The Supreme Court has repeatedly held that such acts are unconstitutional where the possibility of other counties having such a population by any subsequent census is too remote to form a basis for a reasonable classification on lthe subject of territorial generality of the act. For example, the statute which might provide for all counties with a minimum population of 10,000 and a maximum of 10,010. In such instances, the statute has been held to be a special law within the meaning of the Constitution, prohibiting the passage of special laws for which provision has been made by an existing general law. Likewise, other statutes relating to various phases of local government have been drawn so as to "freeze" the counties affected, no matter what population changes occur, so that no county originally within the population bracket specified by the act could ever be removed therefrom, irrespective of its population. See Futrell v. George, 135 Ga. 265 and also the case of Gibson v. Hood, 185 Ga. 426. 125 However, I am inclined to believe that the statute in which you are interested falls within the provisions of the opinion handed down in the case of Estes v. Jones, 203 Ga. 686. In that case, the statute under discussion involved a population limitation of not less than 85,000 and not more than 90,000 according to the 1940 census or any future census, and the court held as follows: "In the instant case, the classification of counties having a population of not less than 85,000, and not more than 90,000, according to the United States census of 1940 or any future census (italics ours), meets the requirement as to being open so as to be applicable to all counties coming within the prescribed classification; and since there is no further restrictive proviso such as would make the act applicable to one county only, and it does not appear that such classification is not without a reasonable basis, such act is not, as contended, violative of the constitutional provision here invoked." Therefore, since all presumptions are in favor of the constitutionality of an act of the General Assembly, unless the conflict is plain and palpable, it is my unofficial opinion that the statute to which you refer in your letter is constitutional. LEGISLATION-P1JiPulation Acts (Unofficial) A local act not in conflict with any general law is not unconstitutional; so-called population acts are usually acts which seek to circumvent general laws on the particular subject with which the population acts deal. Honorable A. S. McQueen March 12, 1952 Your letter requests my views as to the validity of a local act entitled "Charlton County-Fines and Forfeitures-Sheriff's Salary" (Georgia Laws 1949-50, p. 2375). The "local bills" to which I chiefly referred in my address, which you mentioned in your letter, are the "population acts" which purport to be general law, but are so restrictive as to really be purely local. These bills are often invalid because they do not embrace a reasonable population classification. However, the act which you cite respecting Charlton County is a local act of a different nature, for it names the county and does not attempt to accomplish its objective by a population group applicable only to Charlton County. A local bill of this nature will be found valid if it meets the two following requirements: 1. Proper advertisement of notice must be published in county newspaper within sixty days prior to introduction in compliance with Article III, Section VII, Paragraph XV of the Constitution (Sec. 2-1915, Georgia Code Annotated). 2. The Act must not be in conflict with the Constitution or any general law. It is the duty of the courts to pass upon the constitutionality of an act of the General Assembly, since all acts of the General Assembly are presumed to be constitutional until otherwise declared by the courts. 126 MUNICIPAL CORPORATIONS-Contracts (Unofficial) 1. The Cities of Thomaston, Silvertown and East Thomaston could legally contract for a period up to fifty yeats relative to a water supply. 2. Said cities could not, however, contract so as to bind. their subsequent councils relative to water rates and sewage disposal, as the latter subjects are governmental in nature. February 29, 1952 Honorable Frank Binford I am in receipt of your letter enclosing your file of correspondence and engineering data and requesting my opinion on the legality of a proposed contract between the municipalities of Thomaston, Silvertown and East Thomaston whereby the water supply and sewage problems of these three cities might be worked out by a mutual undertaking to be entered into for a period of several years. I. Section 69-202 of the Code of Georgia of 1933 provides: "One council may not by an ordinance bind itself or its successors so as to prevent free legislation in matters of municipal government." Neither can a city do by a contract what it cannot do by an ordinance. (Screws v. City of Atlanta, 189 Ga. 839.) Thus, a city has no power, either by ordinance or by contract, to restrict or limits its legislative 01r governmental powers. (Horkan v. City of Moultrie, 136, Ga. 561; Barr v. City Council of Augusta, 206 Ga. 750). However, the business affairs of a municipality are committed to the corporate authorities, and the courts will not interfere except in a clear case of mismanagement or fraud. (Lawson v. Moultrie, 194 Ga. 699; Barr v. City Council of Augusta, 206 Ga. 753.) A city may bind itself by any contract authorized by its charter. (Williams v. West Point, 68 Ga. 816.) Thus, it appears that one council can not bind itself or future councils either by ordinance or contract restricting its legislative or governmental functions, but may bind itself and future councils by ordinances or contracts respecting its proprietary functions for a reasonable period of time. (Horkan v. Moultrie, 136 Ga. 561; 70 A. L. R. 795; 149 A.L.R. 339.) The construction and operation of both sewage and water supply systems are authorized by the charters of the City of Thomaston (Section 37, Georgia Laws 1933, p. 1070, 1099), the City of Silvertown (Section 18, Georgia Laws 1929, p. 1287, 1296) and the Village of East Thomaston (Section 3, Georgia Laws, 1923, p. 625, 627.) The operation of a sewage system has been construed to be a governmental function authorized as a public health measure. (Barr v. City Council of Augusta, 206 Ga. 750.) The operation of a water works has been held to be a proprieta.ry function of municipalities. (City of Atlanta v. Blackmon, 51 Ga. App. 165.) The fixing of water rates has been held to be a governmental function. (Barr v. City Council of Augusta, 206 Ga. 753.) II. Article VII, Section VI, Paragraph I of the Constitution (2-5901 Georgia . Code Annotated) provides, in part: "(a) The State, state institutions, any city, ;town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any 127 city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake." In DeJarnette v. Hospital Authority of Albany, (195 Ga. 189) the above provision, which then existed as an amendment to the Constitution of 1877, was construed to allow a contract between a city and a Municipal Hospital Authority, but because the contract there in question was itself violative of the debt clause of ,the Constitution as well as the Hospital Authorities Act, the question of the applicability of the statute prohibiting councils from binding future councils was not passed upon by the court. .However, the following dictum appears on page 208 of the report of that decision: "It is sufficient to say that if a contract is made consistently with the debt limitation, and in accordance with the hospital-authority statute, these laws would control, and the rule against binding future councils Would not apply." The court does not elaborate upon this point, but the statement ,apparently rests upon the view that a contract made in conformity with the hospital-authorities statute would be an activity or transaction which the subdivisions would by law be authorized to undertake within the meaning of the Constitutional provision quoted above and, therefore, valid. Although the weight of the DeJarnette case has been seriously reduced by the case of Sheffield v. State School Building Authority (208 Ga. 575), just decided last month, the effect of that case does not appear to change the spirit of the DeJarnette case supporting the proposition which I have just set forth. Placing this construction upon your question, it appears that Thomaston, Silvertown, and East Thomaston could contract for a period up to fifty years on "such activities and transactions as such subdivisions are by law authorized to undertake," without violating the rule against binding future councils. The next question is, "What activities and transactions are Thomaston, East Thomaston and Silvertown authorized by law to undertake?" There is no specific statute (such as the Hospital Authorities Law in the DeJarnette case) which expressly authorizes the contract into which those cities desire to enter. Therefore, they may enter into any contract authorized under their respective charters or under statutory or common law governing municipalities in general. At this point, Section 69-202, Code of Georgia of 1933, forbidding binding of future councils becomes applicable, and the construction placed upon that Section by the courts, as outlined in Part I, above, of this opinion, becomes controlling. III. Therefore, it is my unofficial opinion that the three municipalities concerned could enter into a valid and binding contract to provide a system of water supply mutual to all for a period not to exceed fifty years. It is my further opinion that these municipalities could not bind themselves by any agreement respecting the sewage system or regulation of the rates of water or sewage, for 'a period longer than the life of the present council. We are now exploring possible solutions respecting the sewage system or regulation of the rates of water or sewage. Our views on this point will be sent to you as soon as our research is completed. MUNICIPAL CORPORATIONS-Contracts (Unofficial) The above opinion reaffirmed. March 19, 1952 Honorable Frank Binford Supplementing my letter of February 29th in response to your request for 128 an opinion regarding a proposed contract between the Cities of Thomaston, Silvertown and East Thomaston whereby the water supply and sewage problems of these three cities might be worked out, may I further advise as follows: Upon further study of your problem I believe that the law was properly stated in my letter of February 29th. However, I wish now to review the possibilities of legislative action. Four possible courses are open: 1. Charter Amendment. The first possibility is that of amending the charters of the respective municipalities so as to authorize them to enter into contracts involving fixing of rates and sewage connections for a term longer than the life of the present council. However, I fear that such amendments would be laws of local or special application and in conflict with the general law as stated in my previous letter, and therefore violative of Article I, Section IV, Paragraph I of the Constitution of Georgia. 2. The second possibility is that of repealing Section 69-202 of the Code of Georgia in its entirety thereby removing the statutory prohibition against one council binding succeeding councils. Aside from the questionable wisdom of such legislation, I believe that such an act would only result in a court decision falling back upon the common law as stated in Williams v. The City Council of West Point, 68 Ga. 816, which is to the same effect as the Code Section cited and from which that Section was codified. Such an act would in its practical results achieve nothing. 3. The third possibility is that of amending Section 69-202 of the Code so as to entirely change its meaning and express a legislative intent authorizing one council to bind future councils. Because the principle involved is so deeply rooted in the common law, I am not sure that such an amendment would withstand attack in the Supreme Court. Without deciding that question, however, I feel that the wisdom of such legislation would be so poor that you would not desire to undertake it, for it would open up the entire field of municipal contracts to long-term obligations not desirable in any case. I might add that the possibilities of passing such legislation in the General Assembly would appear to be remote. 4. The last solution which I can propose is that of enacting a statutory authority, such as the School Building or Hospital Authority. Of the four solutions this would appear to be the best, but even so it is a poor one. An act establishing such an authority would have to be a general act of statewide application and would have to repeal Section 69-202 to the extent of its conflict with such an act. Again, the possibility of passing such legislation would present a path involving many obstacles and much opposition. Therefore, I feel that the proposition stated in my letter of February 29th must stand at least for the present. The principles stated therein are followed in most American jurisdictions today and legislation of a general nature would be required to change them in Georgia. (See McQuillin on Municipal Corporations, Second Edition, Sec. 1356). I might say that a contract respecting sewage and water rates entered into between these cities would be valid from year to year and so long as no party repudiated and one city acted pursuant to the agreement, the other cities would be bound thereby. Cartersville Improvement, Gas and Water Co. v. the Mayor and Aldermen of Cartersville, 89 Ga. 683. 129 MUNICIPAL CORPORATIONS-Donations to Private Industry, Etc. (Unofficial) Municipalities are not authorized to make any donations or other financial contributions to private industry. April17, 1952 Honorable Stuart Rothman You request that I forward you a copy of any statute authorizing municipalities to finance building sites or to make other financial contributions to private industry. Municipalities of this state derive their powers only from the General Assembly. Therefore, it would be necessary to consult the charter of each municipality separately to determine what powers have been granted to each municipality. Your attention is called to Article VII, Section V, Paragraph 1 of the 1945 Constitution of Georgia, which provides: "Taxing power and contributions of counties, cities a:nd political divisions restricted. The General Assembly shall not authorize any county, municipal corporation or political division of this State, through taxation, contribution or otherwise, to become a stockholder in any company, corporation or association, or to appropriate money for, or to loan its credit to any corporation, company, association, institution or individual except for purely charitable purposes. The restriction shall not operate to prevent the support of schools by municipal corporations within their respective limits." MUNICIPAL CORPORATIONS-Parkin!g Meters (Unofficial) The right of the City of McDonough to place parking meters upon the public square is discussed. April 3, 1952 Honorable Thomas J. Brown, Jr. You request my opinion regarding the right of the City of McDonough to place parking meters upon the public square in that City. I am pleased to reply as follows: The question of the power of municipalities to regulate parking in public streets through the use of parking meters first came before the Supreme Court of Georgia in the case of Gardner v. City of Brunswick, 197 Ga. 167. In that case the court, in sustaining the power of the City to operate meters, said: "This court is committed to the proposition that the municipalities of Georgia have authority generally over their streets to regulate the parking of automobiles thereon, and, under certain conditions, even to prohibit entirely the parking of automobiles on certain streets in congested areas." Similar questions were raised respecting the same power of the City of Greensboro in the case of Ashely v. City of Greensboro, 206 Ga. 800, in which the court again sustained this power of the city and also held that the ordinance establishing the meter system was not a deprivation of property without due process of law. These seem to be the leading cases in Georgia on the question and appear to be the unquestioned view of the court. Your letter does not make clear whether the city is proposing to erect the meters upon county property or not. If that is the case, the power of the city might be questionable. However, if the city proposes to erect the meters upon their own property or public property, I feel that there is no question that they have the power to do so. 130 MUNICIPAL CORPORATIONS-Abolition of Public Offices (Unofficial) The office of the City Treasury of Camilla may not be abolished during the term of the incumbent by special act unless such act is approved in a referendum held therefor. December 31, 1952 Hon. Frank S. Twitty You request my opinion as to whether the office of the City Treasurer of the City of Camilla may be abolished effective immediately or at the end of the term of the present incumbent. Article III, Sec. VII, Paragraph XV of the Constitution (Code Sec. 2-1915) reads in part as follows: "No office to which a person has been elected shall be abolished, nor the term of the office shortened or lengthened by local or special bill during the term for which such person was elected unless the same be approved by the people of the jurisdiction affected in a referendum on the question." MUNICIPAL CORPORATIONS-Recreational Facilities (l:Jnofficial) The governing authorities of Talbotton may legally acquire and maintain a recreational facility upon their own initiative without an election and the levying of a special tax. June 18, 1952 Honorable Robert H. Jordan This will acknowledge receipt of your letter requesting my opinion on the power of the mayor and council of the City of Talbotton to acquire and operate the municipal recreational facilities without an election and the levying of a special tax for that purpose. Section 2 of the 1946 Act (Ga. Laws, 1946, page 152) provides in part as follows: "... when the governing body of the municipality so dedicates, sets apart, acquires or leases, lands or buildings for such purposes, it may, on its own initiative, provide for their conduct, equipment, and maintenance according to provisions of the Act, by making an appropriation from the general municipal or county funds." Sections 8, 9 and 10. of that Act provide the method by which voters of a municipality may petition for an election and special tax on the question of a municipal recreational facility. It is my opinion that this is an alternative method to that provided in Section 2 and that the governing body of the City of Talbotton may acquire, equip and maintain a recreational facility upon their own initiative without an election and the levying of a special tax. MUNICIPAL CORPORATIONS-Registration of Motor Vehicles (Unofficial) A municipality may not legally require a non-resident thereof to procure a license on his motor vehicle which is not used in said city except in passing through or temporarily visiting therein. March 31, 1952 Mrs. W. E. Russell In your letter you ask whether the City of Augusta has the power to make it mandatory for a person residing outside of the corporate limits of the City of 131 Augusta to register his automobile with the City of Augusta Police Department, and whether the City of Augusta has the power to impose fines on non-residents for failure to comply with the registration law. A non-resident of the City of Augusta cannot be required to take out a license or pay a license fee for the casual operation of his motor vehicle within municipal limits, such as a person residing in another city or state who merely is passing through or temporarily visiting in Augusta. However, a non-resident may be required to register his automobile if he uses it in carrying on a business or occupation within the municipality. In Volume 60, Corpus Juris Secundum, page 246, it is stated as follows: "A non-resident of a city who regularly operates his motor vehicle on the streets of the city in going to and from his place of employment in the city is subject to a license tax imposed generally by an ordinance on owners of motor vehicles operated on the city streets." If the ordinance imposing the license tax or requiring registration is only on non-residents and not on residents of the municipality, then such ordinance would be invalid. The courts have further held that this power to require license taxes and registration fees on non-residents is derivative and the General Assembly may at any time limit, revoke, or withhold the power from the municipality by proper, statute. MUNICIPAL CORPORATIONS-Sunday Movies (Unofficial) A municipality, having granted a permit for the showing of Sunday movies may subsequently revoke said permit without the necessity of first holding an election. Mr. Walter D. Sanders September 26, 1952 You request my advice as to whether or not under House Bill No. 403 (Ga. Laws 1949, p. 1007) a municipality can revoke a permit granted thereunder at any time it sees fit, or whether it would be necessary that an election be held to ascertain the feeling of the voters on the question before such permit could be revoked. The act to which you refer authorizes the operation of motion picture theatres and athletic events, games and contests on Sundays under the conditions and procedure outlined in the act. The only provision in this act dealing with an election or referendum is that part of the procedure outlined therein where a petition is filed by 25o/o of the registered voters opposing the issuance of a permit, and this provision contains a prohibition against having more than one such election in any one calendar year. I find no authority in the act in question where an election could be held under the provisions of this act to ascertain the feeling of the voters as to whether or not a city council should revoke a permit granted under the provisions of the act. The act in question specifically provides that the mayor and council can grant a permit to conduct a business of the operation of a motion picture theatre on Sundays and in the event of a refusal to grant such permit, the refused person may present a petition to the mayor and council bearing the names of at least 25% of the registered voters of the municipality requesting that such permit be issued, and in the event such petition is properly filed, it shall be the duty of the mayor and council to issue such permit. 132 Of course, you are familiar with the provisions of Code Section 69-202 of the 1933 Annotated Code which provides: "One council may not by an ordinance bind itself or its successors so as to prevent free legislation in matters of municipal government." You will note that the statute in question involves the issuance of a permit and not a contractual relation. In this connection, you might desire to analyze the case of McKown v. Gty of Atlanta, 184 Ga. 221, which deals with the summary revocation by municipal authorities of a permit to sell malt beverages. It would be my unofficial view that a municipality could revoke in its discretion a permit issued under the provisions of House Bill No. 403 (Ga. Laws 1949, p. 1007), and that a person who has had a permit revoked under such circumstances could, by filing a petition with the mayor and council of the municipality bearing the names of at least 25 o/o of the registered voters of such municipality, require the mayor and council to issue such permit, and that likewise, if such a permit is granted and anyone presented to the mayor and council a petition naming at least 25o/o of the registered voters of the municipality opposing the issuance of such permit that it would then be the duty of the mayor and council to call an election to be held within sixty days for submission of the question to determine whether such theatres shall be allowed to operate on Sundays within such municipality. MILK CONTROL BOARD-Hearings-Evidence The powers of the Milk Control Board, relative to the presentation and production of evidence in hearings before it for the purposes of making and revising price orders and in granting and refusing licenses, are discussed. October 15, 1952 Honorable C. G. Duncan, Director Milk Control Board QUESTIONS: 1. May the Board, at hearings held pursuant to Section 42-544 of the Geor- gia Code Annotated in respect to granting and refusing licenses, introduce evidence obtained by it pursuant to Section 42-532 of the Georgia Code Annotated? Further, may the Board exercise its subpoena powers under Sections 42-529 and 42-530 of the Georgia Code Annotated and use the evidence thereby secured in such a hearing, and if so, should the subpoena power also be exercised in behalf of defendants in such hearings? 2. May the Board, at hearings held pursuant to Section 42-555 of the Georgia Code Annotated in respect to making, amending or revising price orders, introduce evidence obtained by it pursuant to said Section 42-532? Further, may the Board exercise its subpoena powers under Sections 42-529 and 42-530 and use the evidence thereby secured in such a hearing, and if so, should the subpoena power also be exercised in behalf of objectors in such hearings? 3. How may the Board enforce compliance with subpoenas and subpoenas duces tecum which it issues? 4. In price order public hearings, are the books, records, etc. of a single producer admissible on the issue as to what is a proper price to be established for milk by the Board? ANSWERS: 1. Section 42-529 of the Georgia Code Annotated provides in part: "... the Chairman, or any duly authorized agent of the Board, is hereby empowered with authority ... to subpoena and require the attendance of wit- 133 nesses and the production of books, papers, and documents, and to examine such witnesses, and to issue commissions for the examination of witnesses who are out of the State, unable to attend, or excused from attendance, as may be necessary in connection with any public hearing, investigation, or other matter as provided in this law." (Emphasis supplied.) Since both license hearings and price order hearings are provided for by the Milk Control Act, I am of the opinion that subpoena power extends to both types of hearings under the language of the above section. Further, since the above section dealing with subpoena power does not provide that information so obtained shall be privileged, but in fact expressly states that such evidence may be procured in connection with a public hearing, it is my opinion that evidence subpoenaed either at a price order or license hearing is not privileged under the Milk Control Act. However, Section 42-532 of the Georgia Code Annotated reads, in part, as follows: "The Board, acting through the Chairman or an agent authorized by it, shall have power to inspect all books, papers, records, or documents in any place within the State for the purpose of ascertaining facts to enable the Board to administer this law. The members of the Board, the Chairman, and any other person having possession of such information pursuant to the provisions of this law, shall not divulge to any person, firm, or corporation the contents of any documents, papers, or record examined by any of them in the performance of their duties hereunder, or any information obtained by any of them in the course of his investigations, except as may be required to carry out the purposes of this law. . . " (E:mphasis supplied.) In view of the fact that the privilege imposed by the above section is expressly provided not to apply in cases where such information is "required to carry out the purposes of this law", and in view of the fact that the same information could be subpoenaed under Section 42-529 and used at public hearings, I am of the opinion that the privilege imposed under Section 42-532 applies only to information obtained, compiled, and retained by the Board in the course of investigation for the purpose of making its own determinations independent of hearings of any sort. I am of the further opinion that any such privileged information possessed by the Board loses its cloak of privilege when its use becomes necessary at price order or license hearings, and that such evidence is admissible under the same circumstances and rules of evidence as it would be if subpoenaed by the Board. The distinction thus made between "investigations" and "hearings" by administrative bodies is one which has been recognized in a number of cases by the Federal Courts in respect to the Securities and Exchange Commission. Re Securities & Exchange Commission, 84 F. 2d 316; See Annotation VII, c, 1, (d) following A. C. Frost & Company v. Coeur D'Alene Mines Corp., 85 L. ed 500, at page 561. Finally, it is my opinion that the Board has power to issue subpoenas duces tecum in behalf of defendants or objectors, and that the Board should issue such subpoenas upon proper application of the party desiring them, provided such application lays a sufficient foundation for the issuance of a subpoena, that is, by showing the specific records sought to be relevant, material and germane to the issues before the Board for decision. I am of the opinion that the Board may properly deny an application for the issuance of the subpoena where the applicant has not laid such a proper foundation. Goodyear Tire and Rubber Co. v. Nation:al Labor Relations Board, 122 E. 2d 450, 136 A.L.R. 883 and anotation following; Federal Min. & Smelting Co. v. Public Utilities Commission, 26 Idaho 391, 143 184 P. 173, L.R.A. 1917 F. 1195; 42 American Jurisprudence, "Public Administrative Law" Section 89. 2. Question 2 poses the same questions in respect to price order hearings that Question 1 poses in respect to license hearings. Inasmuch as the answer to Question 1, above, is controlling as to both types of hearings, further elaboration is unnecessary on this point. The fact that license hearings are chiefly quasijudicial while price order hearings are more of a legislative nature is not believed to be significant as respects the questions here presented. 3. The answer to your question regarding enforcement of subpoenas duces tecum is to be found in Section 42-530 of the Georgia Code Annotated, which reads as follows: "In case of failure of any person to comply with any subpoena issued under authority of this law, or the refusal of a witness to testify to any matter regarding which he may be lawfully interrogated, the judge of the superior court of the county in which such person resides or of the county in which such person may be personally served, on application of the Chairman, or authorized representative of the Board, shall compel obedience by attachment proceedings as for contempt, as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein." It is my opinion that the Board is dependent, by this Section, on the superior courts for enforcement of its subpoenas. 4. No general rule may be given in response to Question 4 regarding admissibility of records of individual producers at price order public hearings. As stated in Part 1 above, such records lose their cloak of privilege when their use becomes "required to carry out the purposes of this law." The question of whether or not such records are so "required" is one which must necessarily be decided on the facts of each particular case. If under the facts of a particular case, the records of an individual producer are relevant, material and germane to the issues before the Board for determination, it is my opinion that the same would be admissible as evidence, in the absence of any facts which would render them inadmissible under other rules of evidence. There is abundant authority that, while the rules of evidence may be relaxed in administrative hearings, they may not be ignored to such an extent as would amount to a denial of constitutional guarantees. U. S. ex rei. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 71 L. ed. 560. In the case of Oklahoma Press Publishing Company v. Walling, 327 U. S. 186, 90 L. ed. 614, the Supreme Court of the United States held that no unreasonable search and seizure was present, within the prohibition of the Fourteenth Amendment, in a judicially enforced subpoena duces tecum issued by the Wage and Hour Administrator in the course of an investigation conducted pursuant to the Fair Labor Standards Act, seeking the production of specified records of an employer to determine the applicability of the act and whether it was being violated. It is, therefore, my official opinion that evidence obtained either by investigation or subpoena, as outlined in the first parts of this opinion, is admissible at a price order public hearing and is not cloaked with the confidential privilege, provided that under the facts and circumstances of the particular case, such evidence is relevant, material and germane to the issues before the Board, and determination of such issues is necessary to the administration of the Milk Control Law. 135 MORTGAGES-Recording (Unofficial) Mortgages on personal property should be recorded in the county wherein the mortgagor resided at the time of its execution, if a resident of this state; if the mortgagor is a non-resident of the state, the mortgage should be recorded in the county wherein the mortgaged property is located. October 16, 1952 Hon. James A. Comiskey You inquire as to the proper place to record a Chattel Mortgage in order for same to be effective in the State of Georgia. Your attention is directed to section 67-108 of the Code of Georgia of 1933, which provides as follows: "Mortgages on realty shall be recorded in the county where the land lies; on personalty, in the county where the mortgagor resided at the time of its execution, if a resident of this State, and if a nonresident, in the county where the mortgaged property is. If a mortgage shall be executed on personalty not within the limits of this State, and such property shall afterwards be brought within the State, the mortgage shall be recorded according to the above rules within six months after such property shall be so brought in. All chattel mortgages of stocks of goods, wares, and merchandise, or other personal property, shall be recorded, in case the same is upon property or goods located in some other county than that of the mortgagors residence, in the county where said personal property is located at the time of the execution of said mortgage, in addition to the record of said mortgage in the county of the mortgagor's residence ..." NOTARIES PUBLIC-Seals (Unofficial) The amendment of 1952 to Section 71-107 of the Code has had the effect of dispensing with the requirement of a seal in the attestation of deeds. March 6, 1952 Mr. Lambdin Kay You request information concerning an act passed by the recent General Assembly relative to use of notarial seals. The only act which I have discovered from a search of the acts filed with the Secretary of State, affecting the question you raise, is Act No. 928 (House Bill No. 886) which was approved by the Governor on February 15, 1952. This act amended Section 71-107 of the Code of Georgia of 1933, so that said section, as amended, now reads: "71-107. For the authorization of their notarial acts each notary must provide a seal of office, which shall have for its impression his name, the words, 'Notary Public'; the name of the State and the county of his residence, or shall have for its impression his name and the words 'Notary Public, Georgia, State at Large.' A scrawl shall not be a sufficient notary seal. No seal is required to his attestation of deeds.'' The act referred to added the last sentence to the Code Section quoted above. The only effect of the act, therefore, appears to be to remove the requirement of notarial seals to attestation of deeds. Seals continue to be required on all other documents for which they were required prior to the passage of this act. 136 PARDONS AND PAROLES-Restoration of Civil Rights The order of restoration of civil rights issued by the Board of Pardons and Paroles is sufficient to remove the disabilities imposed by the Constitution upon persons convicted of felonies involving moral turpitude. Honorable Edward B. Everett, Chairman State Board of Pardons and Paroles April 1, 1952 You request my official opinion as to whether or not the order of Restoration of Civil Rights issued by the Board of Pardons and Paroles is sufficient to remove the disabilities imposed by Article II, Section II, Paragraph I of the Constitution of Georgia, which paragraph provides for disfranchisement of persons convicted of certain crimes, unless such persons shall have been pardoned. In reply, I am pleased to advise as follows: Article II, Section II, Paragraph I of the Constitution of Georgia provides: "The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned. 2nd. Idiots and insane persons." (Emphasis supplied.) Article V, Section I, Paragraph XI of the Constitution of Georgia reads in part, as follows: "The State Board of Pardons and Paroles shall have power to grant reprieves, pardons and paroles, to commute penalties, remove disabilities imposed by law, and may remit any part of a sentence for any offense against the State, after conviction except in cases of treason or impeachment, and except in cases in which the Governor refuses to suspend a sentence of death." A statutory provision virtually identical to the above-quoted constitutional provision was enacted in Georgia Laws, 1943, p. 185, and codified as Section 77-511, Georgia Code Annotated Supplement, 1951. The same act of the 1943 General Assembly provided, at page 195, that "following the effective date of this Act, all pardons shall relieve from civil and political disabilities." (Georgia Code Annotated Supplement, 1951, Section 77- 528.) This last provision was merely a statement, in statute form, of previous court decisions holding that a pardon operated to restore civil and political rights, including the right to vote and to hold office. (See Hulgan v. Thornton, 205 Ga. 753; Randall v. State, 73 App. 354, cert. den. 91 L. ed: 645; Morris v. Hartsfield, 186 GR. 171.) The order of Restoration of Civil Rights granted by the Board reads, in part: "Ordered that all disabilities resulting from the above-stated sentence be and are hereby removed and the said applicant's civil and political rights are restored." (Emphasis supplied.) This order purports to remove and was intended to remove all disabilities and restore civil and political rights. Of such rights, none can be more prominent than the right to vote and to hold office. Thus, the practical effects of both a pardon and an order restoring civil rights are the same. Both are intended to remove and should be construed as operating to remove all disabilities imposed by law and to restore civil and 137 political rights, including the right to vote and to hold office. It is well settled that no technical words or terms are necessary to constitute a pardon, and in some of the ancient pardons a variety of language is to be found, such as "acquit," "parton," "release," and "exonerate". (See Words and Phrases, Volume 31, page 63, "Pardon.") A pardon and an order of Restoration of Civil Rights thus appearing to achieve the same effect, the only distinction between the two appears to be one of policy adopted by the Board of Pardons and Paroles. In the 1950 booklet of "Policies, Rules and Regulations" of that Board, it is stated on page 1 that, "Pardon will be granted ONLY to that individual who can satisfactorily prove innocence of the crime for which he is serving time or has served time." On pages 3 and 4 of that pamphlet the policy of granting orders restoring civil rights is outlined, and no criterion of proof of innocence is made. Thus, the distinction between a pardon and an order of Restoration of Civil Rights results from a policy of the Board rather than a distinction imposed by law, for the law does not impose the requirement of proof of innocence in granting pardons, but this is an additional requirement established by the Board. Therefore, it is my official opinion that the word "pardoned" as contained in Article II, Section II, Paragraph I of the Constitution of Georgia must be given no stricter meaning than that traditionally required by law, namely, an act of exe(mtive clemency, and Board policy can not be allowed to provide additional requirements to those established by law for the granting of pardons. I am of the further opinion that the order of Restoration of Civil Rights is no different from a pardon except from the standpoint of Board policy in determining which will be issued in a particular case, and that the order restoring civil rights is sufficient, in the eyes of the law, to meet the requirements of Article II, Section II, Paragraph I of the Constitution of Georgia authorizing persons previously disfranchised to be allowed to again vote and hold office. PARDONS AND PAROLES-Commutation of Sentence The Board of Pardons and Paroles has the authority to commute a sentence from six months in jail to six months in the public works camp. July 18, 1952 Honorable Ed Everett, Chairman State Board of Pardons and Paroles This opinion is in response to your request that I advise you whether the State Board of Pardons and Paroles has the power to commute a sentence from six months in jail to six months in a public works camp. The facts, as you stated them, briefly are as :follows: William Thomas Lane was sentenced on October 17, 1951, on a charge of a5sault and battery, to serve 12 months in the public works camp, and 6 months in jail. He will complete the 12 months' sentence on July 25, 1952, and on account of his bad health you desire to know if the Board has the power to provide that the remaining six months be served on the public works camp rather than in jail. The State Board of Pardons and Paroles is given the power "to grant reprieves, pardons and paroles; to commute penalties; remove disabilities imposed by law, and may remit any part of a sentence for any offense against the State ... " See Article V, Section I, Paragraph XI of the Constitution (Code Section 2-3011). Before the Board was granted these powers, the Governor possessed them. In the case of Ogletree v. Dozier, 59 Ga. 800, a prisoner was sentenced to work 138 on the chain-gang. The county comm1ss1oners, under authority of a local act applying to their particular county, hired the prisoner to Ogletree to work on his plantation, or elsewhere. The court, in its decision, held that this local act empowered the commissioners to change, or commute, the sentence of the court and stated that this power was restricted by the Constitution to the Governor. The Court also said: "To commute means to change, and as the constitution vests this power in the executive, the legislature, we think, cannot take it away and give it to county commissioners. "In its legal sense, to commute would mean to change from a higher to a lower punishment-to change a penalty from the hard work of a chaingang to work on a farm, for instance; and we hold that this power belongs, if it be exercised at all, to the governor." While the facts in that case are not identical with those in the present situation, there is enough similarity for the law to apply in the instant matter. The Pardon and Parole Board is now substituted for the Governor, and I am of the opinion that the Court in the Ogletree case gives ample authority for holding that the Board has the power to change the sentence of Lane from six months in jail to six months in the public works camp. PARENT AND CHILD-Bastards-Legitimation (Unofficial) The various laws relating to bastards and proceedings for legitimation are discussed. May 14,1952 Mr. Richard E. O'Brien You seek information concerning how a illegitimate child may be legitimated, and other related matters concerning illegitimate children and bastardy proceedings. I believe that the following provisions of law will answer all of your questions, which I am not attempting to answer one at a time. In the State of Georgia all children born in wedlock, or within the usual period of gestation thereafter, are legitimate. If pregnancy existed at the time of the marriage, and a divorce is sought and obtained on that ground, the child, though born in wedlock is not legitimate. The marriage of the mother and reputed father of an illegitimate child, and the recognition of such child as his, shall render the child legitimate; and in such case the child shall immediately take the surname of its father. Code Section 74-103 of the 1933 Code of Georgia provides as follows: "74-103-Legitimation by order of court; petition; notice of proceedings.A father of an illegitimate child may render the same legitimate by petitioning the superior court of the county of his residence, setting forth the name, age, and sex of such child, and also the name of the mother; and if he desires the name changed, stating the new name, and praying the legitimation of such child. Of this application the mother, if alive, shall have notice. Upon such application, presented and filed, the court may pass an order declaring said child to be legitimate, and capable of inheriting from the father in the same manner as if born in lawful wedlock, and the name by which he or she shall be known." An illegitimate child, or bastard, is a child born out of wedlock and whose parents do not subsequently intermarry. The father of an illegitimate child shall be bound to maintain him. This obligation shall be good consideration to support a contract by him. He may voluntarily discharge this duty; if he shall fail or 139 refuse to do it, the law will compel him. There is no statute in this state which provides that a child born after a certain date is presumed to be the illegitimate child of its natural parents. The statute of this State with regard to bast,ardly proceedings is codified in Code Section 74-301, 74-302, and 74-303 of the 1933 Code of Georgia which are as follows: "74-301-Proceedings against the mother-Any justice of the peace who knows or has information on oath to that effect, of any woman having an illegiti- will mate child, or being pregnant with one, which probably become a charge upon the county, may issue a warrant directed to the sheriff or any constable of the county where the case may arise, requiring the offender to be brought before him to give security to the ordinary of the county, in the sum of $750.00, for the support and education of the child until it shall arrive at the age of 14 years, or to discover on oath the father of the child. "74-302. Proceedings against the father.-When the woman shall be brought before the justice of the peace, if she discovers on oath the father of the child, the justice of the peace shall issue a warrant, directed as before, requiring that the person thus sworn to be the father of the child so born, or to be born, shall be brought before him, which warrant said officers shall execute." "74-303. Father required to give bond; recognizance; indictment.-When the putative father shall be brought before the justice of the peace, he may be required to give security for the maintenance and education of the child until he arrives at the age of 14 years, and also the expense of lying-in with such child, boarding, nursing, and maintenance, while the mother is confined by reason thereof; and if the putative father shall fail to give such security, the justice shall bind him over in a sufficient recognizance to appear before the next superior or county court of the county to answer such complaint as may then and there be alleged against him touching the premises, and the solicitor general shall prefer and lay before the grand jury the proper indictment." Regarding the law of the domicile of the father, it was held in the case of Eubanks v. Banks, 34 Ga. 407, to wit: "While the lex loci, as a general rule, governs ... questions of legitimacy, it is subject, to the great controlling idea, that it will not be enforced by comity, if it involves anything immoral, contrary to general policy, or violative of the conscience of the state called on to give it effect." Bastards in this State are not a public charge per se, but assistance may be obtained under the Aid to Dependent Children Act (Code Section 99-9) if qualified by the State Department of Public Welfare. Lastly, I invite your attention to the Uniform Support of Dependents Law (Ga. Laws 1951, pp. 107 et seq.), from which I quote on page 109, "A child or children born of parents who, at any time prior or subsequent to the birth of such child, have entered into a civil or religious .marriage ceremony, shall be deemed the legitimate child or children of both parents, regardless of the validity of such marriage. A child or children born of parents who held or hold themselves out as husband and wife by virtue of a common-law marriage recognized as valid by the laws of the initiating state and of the responding state shall be deemed the legitimate child or children of both parents. "Initiating state means the state of domicile where marriage originates. 140 PARENT AND CHILD-Legal Age (Unofficial) The legal age of minors in this state is discussed. March 12, 1952 Dr. J. F. Heinrich You ask what the legal age is for a male in Georgia, and whether a Georgia divorce requiring the support of a son "until he is of legal age" means legal age in Georgia, in New York-the infant's residence, or in Michigan-the father's residence. Section 74-104 of the 1933 Code of Georgia reads as follows: "The age of legal majority in this State is 21 years; until that age, all p,ersons are minors." (Emphasis added) In a case reported in 65 Ga. 400, this section was held to include males and females. In 171 Ga. 602, it was held that on the first moment of the day preceding the 21st anniversary of the birth of a minor, such minor becomes of legal majority. In answer to your second question, it is my opinion that the laws of the state of rendition of the divorce would control as to the meaning of the term "legal age", which, in this case, is Georgia. PARKS DEPARTMENT-Acworth Lake State Park The Department of State Parks is legally authorized to expend money in the development of the Acworth Lake State Park area, as provided by an appropriation act of the General Assembly. July 17, 1952 Honorable John M. Mann Assistant Director Department of State Parks FACTS: On the 27th day of May, 1952, the Secretary of the Army of the United States granted to the Department of State Parks of the State of Georgia a license for a period of twenty-five years to use and occupy, for the establishment, operation and maintenance of a State Park Area, approximately 1,137 acres of land in the Acworth Subimpoundment Area of the Allatoona Reservoir Area, to be used for State Public Parks and Recreational purposes. The license contains specific reservations that the State of Georgia shall be authorized to remove all property that the State may place on said lands. QUESTION: Does the Department of State Parks have the power and authority to expend appropriated funds for the development of this area for State park and recreational purposes? LAW: The General Assembly, at its 1951 Session, passed an Appropriation Act (Ga. Laws 1951, p. 443), which was approved on February 21, 1951, and provides in sub-section (t) as follows: " (t) For cost of the development of a State Park on Lake Acworth in Cobb County, Georgia, which Lake Acworth was created by a subimpoundment dam in Cobb County of the U. S. Government Allatoona Dam Project, $50,000.00." OPINION: Under the above-cited General Appropriation Act, the Department of State Parks is authorized to expend the amount appropriated for the development of a 141 State Park on Lake Acworth in Cobb County, Georgia, which was created by a subimpoundment dam in Cobb County of the United States .Government Allatoona Dam Project. In view of the special clause contained in the lease from the Secretary of the Army, which allows the State of Georgia to remove any property, real or personal, that the State may place or build on said lands within said areas, and the clear grant of authority in the General Appropriation Act by the General Assembly to the Department of State Parks, I reach the conclusion, and it is my opinion, that the Department of State Parks, acting within the appropriated funds and with State budgetary approval, would be authorized to expend such available funds for the purpose of the development of a state park within such area. This opinion is not to be construed to apply to any other project or areas except those contained in the license agreement between the Secretary of the Army of the United States and the State of Georgia, dated May 27, 1952, covering the Acworth Subimpoundment Area of the Allatoona Reservoir Area. PARKS DEPARTMENT-Bobby Brown Memorial Park The Department of State Parks has legal authority to expend appropriated funds for the development of the Bobby Brown Memorial Park. Honorable John M. Mann Assistant Director Department of State Parks July 16, 1952 FACTS: On the 17th day of April, 1952, the Secretary of the Army of the United States granted to the Department of State Parks of the State of Georgia a license for a period of twenty-five years to use and occupy, for the establishment, operation and maintenance of a State Park Area; 682 acres of land in the Clark Hill Reservoir Area, known as the Bobby Brown Memorial Park, to be used for State Public Parks and Recreational purposes. The license contains specific reservations that the State of Georgia is authorized to remove all property that the State may place on said lands. QUESTION: Does the Department of State Parks have the power and authority to expend appropriated funds for the development of this area for state parks and recreational purposes? LAW: The General Assembly, at its 1952 Session, passed Senate Resolution No. 91 (Georgia Laws 1952, pp. 594, 595, 596), which was approved on February 15, 1952, and provides in part as follows: "Now, therefore, be it resolved by the Senate, the House of Representatives concurring, that the Governor and the Director of the Department of State Parks, acting for and on behalf of the State of Georgia, are hereby authorized and directed to negotiate with the United States Army Corp of Engineers and the Elbert County Park Authority, and any other necessary persons or agencies for the leasing of the aforesaid property in Elbert County for the purposes of the development of a State park. "Be it further resolved that when such negotiations have been completed that the area be developed as a State park, to be named the Bobby Brown Memorial Park ... 142 "Be it further resolved that the development of the said State park shall be in addition to any other developments now or hereafter proposed." OPINION: Under the above-cited Senate Resolution, the Department of State Parks is not only authorized but it is directed to negotiate with the United States Army Corp of Engineers for the leasing and development for state park purposes of the recreational areas under consideration. In view of the special clause contained in the lease from the Secretary of the Army, which allows the State of Georgia to remove any property, real or personal, that the state may place or build on said lands within said areas, and the clear grant of authority and direction given by the General Assembly to the Department of State Parks, I reach the conclusion, and it is my opinion, that the Department of State Parks, acting within the appropriated funds and with State budgetary approval, would be authorized to expend such available funds for the purpose of the development of a state park within such area. This opinion is not to be construed to apply to any other project or areas except those contained in the lease or license agreement between the Secretary of the Army of the United States and the State of Georgia, dated April 17, 1952, covering the Bobby Brown Memorial Park Area of the Clark Hill project. PARKS DEPARTMENT-Acceptance of Deeds Deeds conveying property to the state should be made in the name of the State of Georgia, accepted by the Governor, and an entry made on his journal. May 1, 1952 Mr. John M. Mann Assistant Director Department of State Parks You ask my opinion regarding the procedure to be employed in accepting five Atlanta Campaign National Historic Sites and the New Echota Marker Site as gifts from the United States Government, Department of the Interior. Please be advised that the form which you have submitted with your letter meets all of the requirements of a valid deed in Georgia, inasmuch as it has two witnesses and a notary public, whereas we require only one witness and a notary public in this state. The presence of an additional witness, however, will not affect its validity. The acceptance of these sites by deed does not follow any prescribed form, but the deeds should be made to the State of Georgia, accepted by the Governor, and an entry made on his journal as is required for all official acts of the Governor. PARKS DEPARTMENT-Acceptance of mfts The Parks Department may legally accept gifts of historic properties from the United States Government for use as a part of the parks system of this state. January 7, 1952 Honorable John M. Mann Assistant Director Department of State Parks This is in further reply to your letter requesting information as to the authority of the Department of State Parks to accept a gift of land for use as 143 a part of the parks system of this state from the United States Government. Your attention is called to Sub-section (c) of Section 43-124 of the 1933 Code of Georgia, Annotated, which was codified from the acts of 1937, pages 264-275, as amended by the acts of 1943, page 180. "(c) Acceptance of gifts, etc. To accept in its discretion, with concurrence of the Commissioner, in fee or otherwise, land intrusted, donated, or devised to the State by the United States Government, political subdivision of the State, or by any person, firm, association, or corporation to become a part of the State park system, and with like discretion to accept gifts, bequeaths, or contributions of money or other property to be used in extending, improving, or maintaining the State park system." You would be authorized to accept under the provisions of the above Code Section for public use as a part of the parks system of this state, historic properties as an outright gift by the United States Government. My opinion above is based upon a fee simple title being given to the state without the incurring of any obligation, financial or otherwise, against the State of Georgia. PARKS DEPARTMENT-Keg Creek State Park While the Department of State Parks is legally authorized to enter into a lease agreement with the United States for the acquisition of property to be developed and known as the Keg Creek State Park, said department is without authority to proceed with the permanent developments thereon until appropriations have been made by the General Assembly. Honorable John M. Mann Assistant Director Department of State Parks July 17, 1952 FACTS: The Secretary of the Army of the United States has submitted to the Depart- ment of State Parks of the State of Georgia for acceptance a license for a period of twenty-five years to use and occupy, for the establishment, operation and maintenance of a State Park Area, approximately 957 acres of land and water areas in the Clark Hill Reservoir Area, known as the Keg Creek State Park, to be used for State public park and recreational purposes. The license contains specific reservations that the State of Georgia shall be authorized to remove all property that the State may place on said lands. QUESTION: Does the Department of State Parks have the power and authority to expend appropriated funds for the development of this area for State park and recreational purposes? LAW? The General Assembly has not as of this date made an appropriation for the development of the area under consideration herein. OPINION: The license, or lease agreement, submitted by the Secretary of the Army of the United States to the Department of State Parks of the State of Georgia is in proper form. In view of the fact that the General Assembly has not as of this date passed an appropriation for the development of the Keg Creek Area of the Clark Hill Reservoir Area Project as a state park, I reach the conclusion, and it is my 144 opinion, that under the general powers of the State Department of Parks, it would be authorized to enter into the license agreement submitted by the Secretary of the Army, covering the area under question herein, but the State Department of Parks would not be authorized to proceed with permanent developments on and within said area until and after the General Assembly of Georgia has made an appropriation for the development of the same into a state park and recreational area. This opinion is not to be construed to apply to any other project or areas except those contained in the proposed license agreement between the Secretary of the Army of the United States and the State of Georgia, covering the Keg Creek State Park Area of the Clark Hill Reservoir Project. PARKS DEPARTMENT-Mistletoe Veterans Memorial Park The Department of State Parks is legally authorized to negotiate with the United States in the development of a state park in the Clark Hill Reservoir area, known as the Mistletoe Veterans Memorial Park. Honorable John M. Mann Assistant Director Department of State Parks July 17, 1952 FACTS: The Secretary of the Army of the United States has submitted to the Depart- ment of State Parks of the State of Georgia for acceptance a license for a period of twenty-five years to use and occupy, for the establishment, operation and maintenance of a state park area, approximately 1,773 acres of land and water areas in the Clark Hill Reservoir Area, known as the Mistletoe Veterans Memorial State Park, to be used for state public park and recreational purposes. The license contains specific reservations that the State of Georgia shall be authorized to remove all property that the state may place on said lands. QUESTION: Does the Department of State Parks have the power and authority to expend appropriated funds for the development of this area for state park and recreational purposes? LAW: The General Assembly of Georgia, at its 1952 Session, passed House Resolution No. 249-928a (Ga. Laws 1952, p. 542), which was approved on February 15, 1952, and provides in part as follows: "Whereas this area is available to the State of Georgia under a licensing agreement between the United States Army, Corps of Engineers, and the Georgia State Parks Department. "Now, therefore be it resolved by the House of Representatives, the Senate concurring, that the Director of the Department of State Parks of Georgia, is hereby authorized to negotiate with the United States Army, Corps of Engineers, for the licensing of property known as the 'Mistletoe State Park Area' in Columbia County, Georgia, for the development of a State park. "Be it further resolved that the Department of State Parks is hereby authorized to expend any State funds which may be appropriated for development of State parks for the development of this area. "Be it further resolved that the development of this park shall be in addition to any other developments now or hereafter proposed and that said park shall be known as 'Mistletoe State Park.'" 145 OPINION: Under the above-cited House Resolution, the Department of State Parks is authorized to negotiate with the United States Army, Corps of Engineers for the development of a State Park in the Clark Hill Reservoir Area, known as the Mistletoe Veterans Memorial State Park. In view of the special clause contained in the lease from the Secretary of the Army, which allows the State of Georgia to remove any property, real or personal, that the state may place or build on said lands within said areas, and the clear grant of authority given by the General Assembly to the Department of State Parks, I reach the conclusion, and it is my opinion, that the Department of State Parks, acting within the appropriated funds and with state budgetary approval, would be authorized to expend such available funds for the purpose of the development of a state park within such area. This opinion is not to be construed to apply to any other project or areas except those contained in the license agreement between the Secretary of the Army of the United States and the State of Georgia, covering the Mistletoe Veterans Memorial State Park in the Clark Hill Reservoir Area. PARKS DEPARTMENT-Rabun County Conveyance A conveyance of property to the Parks Department by Rabun County is approved. Honorable John M. Mann Assistant Director Department of State Parks July 17, 1952 Pursuant to your request, I have reviewed the deed from the Ordinary of Rabun County, Georgia, dated June 30, 1952, by which the County of Rabun conveys unto the State of Georgia certain described real property in fee simple covering six parcels of land designated as tracts 1, 2, 3, 4, 5 and 6, and more specifically described in said deed. I have reviewed the title examination and certificate of Honorable John G. Davis, Attorney for Rabun County, Georgia, dated June 26, 1952, relative to the above-described parcels of land. From the examination of these documents and others contained in the files relative to the transfer of this property, I reach the conclusion that the State of Georgia would have sufficient title in said lands under which the State Department of Parks would be authorized, acting within the appropriated funds, and with State budgetary approval, to expend such funds for the development of state park and recreational facilities within the above-specified parcels of land. PARKS-JEKYLL ISLAND PARK AUTHORITY-Leases Leases executed by the Jekyll Island Park Authority will constitute contracts of lease between the individual lessees, the Jekyll Island Authority, and the State, and will not be mere sub-leases of the Jekyll Island Park Authority. Honorable Herman Talmadge August 20, 1952 Governor of Georgia You request my opinion upon the following question: "Under and by virtue of Section 12 of the Jekyll Island State Park Authority 146 Act as amended, will leases executed by the Authority be and remain contracts of lease between the individual lessees and the State of Georgia rather than mere subleases of the Jekyll Authority?" At the 1952 session of the General Assembly, Section 12 of the Jekyll Island State Park Authority was amended to read as follows: "Section 12. The lots in the various subdivisions created on Jekyll Island by the Authority may be leased either singly or in groups deemed appropriate by the Authority, only after publication of a complete schedule of lease rentals applicable to the lots in the official organs of Glynn and Fulton Counties; provided that, if at any time the number of acceptable applications for lots received by the Authority shall exceed the number of lots available in any one of the property subdivisions created by the Authority, that a drawing shall be held to determine which of the acceptable applications and the sequence in which acceptable applicants may lease the available lots. All such leases granted by the Authority shall, upon execution, become a contract between the individual lessee, his approved assigns, the Authority, and the State of Georgia." You will note the last sentence of the above paragraph which provides that all leases granted by the Authority shall, upon execution, become a contract between the individual lessee, his approved assigns, the Authority, and the State of Georgia. In view of the 1952 amendment it is my opinion that the leases authorized in the Jekyll Island State .Park Authority Act as amended will be contracts of lease between the individual lessees and the Jekyll Island Authority and the State of Georgia as lessors and not mere subleases of the Jekyll Island State Park Authority. PEACE OFFICERS-Arrest Without Warrant (Unofficial) Both state and municipal officers are authorized to arrest without warrant for a crime committed in their presence or where the offender is escaping or where there is likely to be a failure of justice. March 7, 1952 Honorable Lebbeus Dekle Your attention is called to Section 27-207 of the 1933 Code which provides that an officer may arrest without warrant for a crime committed in his presence or where such offender is escaping or where there is likely to be a failure of justice. In the case of Porter v. State, 124 Ga. 297, the Supreme Court of Georgia, in construing this section of the Code, held it to include both state and municipal officers arresting for state offenses. PEACE OFFICERS-Collect Fines (Unofficial) Police officers of this state have no authority to impose or collect fines. Mr. Ross D. Netherton, Manager December 17, 1952 You inquire as to the authority of police officers to impose and collect fines. Police officers of this state have no authority to impose or collect fines. 147 PENSIONS-Confederate Widows-Residence The widow of an ex-confederate soldier moving into this State and desiring to receive a confederate pension may establish a bona fide residence by residing in this state for a period of twelve months. Miss Lillian Henderson March 7, 1952 Director, Department of Confederate Pensions and Records I am pleased to acknowledge your request for an opinion on the following question: When widows of Confederate veterans come to Georgia for residence, how long will they have to reside in this state before becoming eligible for Confederate widows' pensions? Your attention is called to my opinion to you dated February 7, 1950, in which I held: "It is my opinion that a widow of a soldier who enlisted and served in the military service of the Confederate States, or in a Georgia regiment or company, or under a Georgia command, or in the organized militia of the State of Georgia during the Civil War, who died in said service or was honorably discharged therefrom, shall be entitled to receive a pension in accordance with the provisions of Section 78-216 of the Code of Georgia upon proper proof that she is a bona fide resident citizen of this State, and that such widow was married to such hus- band prior to the first day of January, 1920, and who is unmarried, and that it is not necessary for such person to have had a continuous residence in Georgia from 1920 or 1937." It is my opinion that a widow of an ex-Confederate soldier would become a bona fide resident of this State if she actually resided and maintained her residence in the State of Georgia for a period of twelve months. PENSIONS-Confederate Widows The question of the residence of a Confederate widow so as to entitle her to a pension, should be determined by the ordinary, which determination should be certified to the Director of the Department of Confederate Pensions and Records. September 9, 1952 Miss Lillian Henderson Director, Department of Confederate Pensions and Records In response to your letter I am enclosing herewith the record mentioned therein relative to Mrs. Effie C. Dicks' eligibility for a Confederate widow's pension in Georgia. In my opinion dated March 7, 1952 I stated: "It is my opinion that a widow of an ex-Confederate soldier would become a bona fide resident of this State if she actually resided and maintained her resi- dence in the State of Georgia for a period of twelve months." Section 78-210 of the 1933 Annotated Code of Georgia provides that the ordi- nary shall certify to the citizenship of the. applicant. Of course you are familiar with the provisions of Sections 78-212 and 78-213 of the Code which authorize the Department of Confederate Pensions and Records to demand additional proof if they have reason to suspect that the claim is not meritorious. The question of the residence of Mrs. Dicks should be determined by the ordinary of the county in which she is a resident and if found to be a bona fide resident of Georgia from the facts presented, then the ordinary should so certify his findings to you. 148 PERSONS-Domicile-Voting (Unofficial) A resident of Georgia who moves to another state may still vote in Georgia, assuming he has not changed his residence, which would depend to a great extent upon his intention. February 21, 1952 Mr. Norman C. Ferguson You ask whether or not a person who has been a resident of Georgia and moves to another state may always thereafter be able to vote in Georgia. I am glad to state to you that the question of a person's residence is one of intent at the time he changes his domicile. Therefore, a person could maintain a domicile in one state and still be a resident of another state for purposes of voting. It is a question of fact as to whether or not a person changing his domicile also changes his residence. If such a person does such acts as would indicate a change of residence, the fact that he stated his residence was still in another state would probably be overcome by the acts themselves. If, however, a person states that his residence is still in the state which he has left and does no acts which would indicate a change of residence, he would still be entitled to vote in the state he claims for his residence. I know of no time limit under this general provision. PERSONS-Segregation of Rac.es (Unofficial) The various state laws relative to segregation of the races are stated. Honorable Voigt R. Cromer May 6,1952 You desire a listing of the Georgia statutes relating to segregation. Article VIII, Section I, Paragraph I of the Constitution of Georgia of 1945 (Section 2-6401 of the Georgia Code) reads as follows: "The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation. Separate schools shall be provided for the white and colored races." Sections 18-205-210 of the Code reads as follows: "18-205. Common carriers of passengers for hire shall furnish like and equal accommodations to all persons, without distinction of race, color, or previous condition." "18-206. Railroad companies doing business in this State shall furnish equal accommodations, in separate cars or compartments of cars, for white and colored passengers, and when a car is divided into compartments, the space set apart for white and colored passengers respectively may be proportioned according to the proportion of usual and ordinary travel by each on the railroad or line on which the cars are used. Such companies shall furnish to the passengers comfortable seats and shall have the cars well and sufficiently lighted and ventilated. Officers or employees having charge of railroad cars shall not allow white and colored passengers to occupy the same car or compartment." "18-207. All conductors or other employees in charge of passenger cars shall assign all passengers to their respective cars, or compartments of cars, provided by the said companies under the provisions of section 18-206 and all conductors of street cars and busses shall assign all passengers to seats on the cars under their charge, so as to separate the white and colored races as much as practicable; and all conductors and other employees of railroads and all conductors of street cars and busses shall have and are hereby invested with, police powers to carry out 149 said provisions." "18-208. No passenger shall remain in any car, compartment, or seat, other than that to which he has been assigned. The conductor and any and all employees on such cars are clothed with power to eject from the train or car any passenger who refuses to remain in the car, compartment or seat assigned to him." "18-209. The provisions of the preceding three sections shall not apply to colored nurses or servants in attendance on their employers." "18-210. Sleeping-car companies and railroad companies operating sleeping cars in this State shall have the right to assign all passengers to seats and berths under their charge, and shall separate the white and colored races in making said assignments, and the conductor and other employees on the train to which sleeping cars may be attached shall not permit white and colored passengers to occupy the same compartment: Provided, that nothing in this section shall be construed to compel sleeping-car companies or railroads operating sleeping cars to carry persons of color in sleeping or parlor cars: Provided, that this section shall not apply to colored nurses or servants traveling with their employers. A conductor or other employee of a sleeping car, as well as a conductor or other employee of the train to which a sleeping car may be attached, shall have full police power to enforce this section." Section 32-909 of the Annotated Code of Georgia, as it appears in the 1951 Cumulative Pocket Part, reads in part as follows: "It shall also be the duty of said board of education to make arrangements for the instruction of the children of the white and colored races in separate schools. They shall, as far as practicable, provide the same facilities for both races in respect to attainments and abilities of teachers, but the children of the white and colored races shall not be taught together in any common or public school." Section 32-937 of the Code of Georgia reads in part as follows: "Colored and white children shall not attend the same school; and no teacher receiving or teaching white and colored pupils in the same school shall be allowed any compensation at all out of the common school fund." Section 35-225 of the Code, under the Chapter relating to the mental hospital, reads as follows: "The Board of Control shall see that proper and distinct apartments are arranged for said patients, so that in no case shall Negroes and white persons be together, nor the penitentiary convicts with inmates of any other class; and males and females shall be kept separate." Section 53-106 of the Code reads as follows: "It shall be unlawful for a white person to marry anyone except a white person. Any marriage in violation of this section shall be void." Section 53-9903 of the Code reads as follows: "Any person, white or colored, who shall marry or go through a marriage ceremony in violation of the provision of section 53-106 shall be guilty of a felony, and shall be punished by imprisonment in the penitentiary for not less than one year and not more than two years." Section 77-315 of the Code reads in part as follows: "In exercising their discretion as to what convicts shall be employed upon the State farm or farms, and in awarding the labor of convicts to counties and municipalities, it shall be the duty of the Prison Commission, where practicable, to employ whites and Negroes in separate institutions and locations, and they shall be provided with separate eating and sleeping apartments. . " Section 77-317 of the Code reads in part as follows: 150 "The Prison Commission shall provide: . . for the keeping separate and apart of white and colored convicts when not at work, and when actually engaged in work to be kept separate as far as practicable." Section 77-613 of the Code, under the title "Georgia State Training School for Boys", reads as follows: "The white and colored inmates shall be kept separate and distinct in all work and study." Section 77-701 of the Annotated Code of Georgia, as it appears in the 1951 Cumulative Pocket Part, reads as follows: "There shall be established in the State of Georgia an institution to be known as the Georgia Training School for Girls. The colored division of the Georgia Training School for Girls shall be located in Bibb County, Georgia, upon land donated to the State of Georgia for such purposes. The Governor shall accept a deed of gift from Bibb County, conveying land comprising approximately 131 acres together with the buildings and improvements located thereon for use as the site of said division of said institution." Section 77-707 of the Annotated Code of Georgia, as it appears in the 1951 Cumulative Pocket Part, reads as follows: "The Governor as Director of the Budget and the Budget Commission is hereby authorized to support and maintain the colored division of the Georgia Training School for Girls, created and established by section 77-701, and located in Bibb county, Georgia, out of any funds which may be available from the State Department of Public Welfare, and out of any other funds which might be available for the purpose in the discretion of the Budget Commission." Section 77-9904 of the Code reads as follows: "No person controlling convicts shall confine white and colored convicts together, or work them chained together, or chain them together going to or from their work, or at any other time. Any person and each member of a firm violating the provisions of this section shall be guilty of a misdemeanor." There are other statutes relating to colored persons, but I believe the ones quoted above cover the main provisions of law, particularly regarding segregation. PLEADING-Third Party Practice (Unofficial) There are no provisions of Georgia law relating to third party practice in the sense of Rule 14 of the Federal Rules of Civil Procedure. September 24, 1952 Honorable John B. Boatwright, Jr. You request information regarding third party practice in the Courts of Georgia. (1) There is no provision in Georgia law for third party practice in the sense of Rule 14 of the Federal Rules of Civil Procedure. (2) So far as I know there is no present contemplation of instituting third party practice in Georgia Courts. Having answered your first two questions in the negative, Questions (3) and (4) regarding experience under such practice become inapplicable. I will state to you, however, as a matter of information, that Section 38-624 of the Georgia Code of 1933 provides: "Where a defendant may have a remedy over against another, and vouches him into court by giving notice of the pendency of the suit, the judgment rendered therein shall be conclusive upon the party vouched, as to the amount and right of the plaintiff to recover." 151 In the case of Southern Railway Company v. Acme Fast Freight, Inc. (1942), 193 Ga. 598, 19 S. E. 2d 286, the Supreme Court of Georgia stated at page 601: "The underlying purpose of the rule which permits the vouching of another into court to defend a suit, where the defendant claims that the vouchee would in turn be responsible to him for any recovery had, is to conclude the vouchee upon the question of the voucher's liability to the original plaintiff and the amount of such liability; thus leaving for future determintaion only the one other question as to whether or not the vouchee is in fact liable over to the vouching defendant." This provision for vouching a party into court appears to be the nearest thing to third party practice existing under Georgia law at present. PRISONS AND PRISONERS-Transfer of Prisoners The director of the Georgia Training School for Boys has the authority to transfer inmates committed to his institution to the Department of Corrections, under the prescribed statutory conditions. Editor's Note: See Ga. Laws 1953 Nov.-Dec. Sess., p. 87. April 21, 1952 Honorable J. B. Hatchett Assistant Director State Board of Corrections I am pleased to acknowledge receipt of your letter to which you attached a copy of a communication addressed to the Board of Corrections by Mr. W. E. Ireland, Director of the Georgia Training School for Boys, at Milledgeville, Georgia. Mr. Ireland requested that you accept three boys committed to his institution from Muscogee Superior Court. You ask me to advise you if you are authorized to accept these three boys at the Tattnall Prison, and, in the event you are authorized to do so, by what means and manner you may determine their service. Mr. Ireland, in his letter to you of April 17, 1952, bases his request for the transfer of the boys under consideration upon the following reasons: "These boys were admitted to the Training School for Boys, in accordance with the terms of their commitments. Almost immediately upon entering the Institution they instigated conspiracies for large-scale escapes involving not only themselves, but numbers of other pupils in the School, as well. Subsequent to initial escape plans, they conspired to assault and overcome one of the School's supervisors, and to take his car keys and car in an effort to insure their safe get-away. "Because of the ages, records, and manifested attitudes of these youngsters after entering the Training School, we do not consider them amenable to the limited security provisions in force at the School, nor to the opportunities afforded in an open Institutional program. "In view of the circumstances outlined, we request that your agency assume jurisdiction of and arrange for the transfer of these persons to your authority, as provided in the commitments and by law." A review of the commitments reveals that the Judge of the Superior Court of Muscogee County provided that the persons in question were committed to the Georgia Training School for Boys with the provision that should the persons committed, in the discretion of the governing authorities of the Georgia Training School for Boys, prove to be uncontrollable through ordinary means of discipline or who, by reason of their conduct or attitude, should be unsuited to b~nefit from 152 the opportunities at the Georgia Training School for Boys, might be transferred to the State Prison at Tattnall. Section 77-602 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, relating to the transfer of persons from the Georgia Training School at Milledgeville to the State prison provides as follows: "All male persons between 16 and 18 years of age, who have been duly convicted in any of the courts of this State of crimes not punishable by death or imprisonment for life, may, in the discretion of the judge having jurisdiction, be committed to the Georgia State Training School for Boys, with a provision in said sentence providing that should the person being committed, in the discretion of the governing authorities of the Georgia State Training School for Boys, prove to be uncontrollable through ordinary means of discipline or who, by reason of his conduct or attitude, should be unsuited to benefit from the opportunities at the Georgia State Training School for Boys may be retransferred by the governing authorities of the Georgia Training School for Boys to the State prison at Tattnall at which institution he shall be segregated from confirmed criminals there." It is clear that the governing authorities of the Georgia Training School for Boys may in their discretion transfer to the State Prison at Tattnall any male person as described in the above-quoted Code Section should he be so determined to be uncontrollable through ordinary means of discipline or who, by reason of his conduct or attitude, should be unsuited to benefit from the opportunities at the Georgia Training School for Boys. The statute further provides that when such person is committed to the State Prison at Tattnall, he shall be segregated from the confirmed criminals there. Section 77-346 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Supplement, relating to the training for youthful offenders and their transfer to and from the State Training School for Boys provides: "The Director of Corrections is hereby authorized to provide such training and provide such camps as may be deemed best for the proper training and rehabilitation of youthful convicts between the ages of 16 and 21 years, and to segregate such convicts from contact with confirmed criminals. The Director of Corrections may transfer any prisoner under 18 years of age from the penal institution in which he is now serving to the Georgia State Training School for Boys to serve as if he had been regularly committed to said institution by the courts of this State: Provided, however, the governing authorities of the Georgia State Training School for Boys shall concur in the suitability of such person as potential trainee before the Director of Corrections shall have power and authority to transfer any prisoner under 18 years of age. If any person transferred to the Georgia State Training School for Boys, who, in the discretion of the governing authorities of the Georgia State Training School for Boys, proves to be uncontrollable through ordinary means of discipline in effect at the Georgia State Training School for Boys or for other reasons should be unsuited to be dealt with by the Georgia State Training School for Boys said Georgia State Training School for Boys shall have authority to return such person to the Director of Corrections to serve the original terms of his sentence in Tattnall prison at which institution he shall be segregated from confirmed criminals." The above statute is also clear in providing a method and procedure for the transfer of persons between the ages of 16 and 18 from the Georgia Training School for Boys at Milledgeville to the State Prison in Tattnall county under the direction of the State Board of Corrections. Section 77-603 of the 1933 Annotated Code of Georgia provides: "The judge committing a person to the Georgia State Training School for Boys shall not fix a limit to the duration of the commitment, unless the same 153 shall be for more than five years, but shall merely commit said person to the Georgia State Training School for Boys; but no commitment shall extend beyond the time when the person committed shall have arrived at the age of 21 years." Section 77-604 of the 1933 Annotated Code of Georgia provides: "Any person committed to the Georgia State Training School for Boys for an offense punishable by imprisonment in the penitentiary may be held in the said School for a term not exceeding five years, where no limit to the duration of the commitment is fixed; but, if committed for a longer term than five years, such person may be held for such longer term; and any person committed to the said School for an offense that is punishable as for a misdemeanor may be held for a term not exceeding two years: Provided, however, that no person shall be held in said School after he shall have arrived at the age of 21 years." Both Section 77-603 and Section 77-604 were codified from the Acts of 1919, pages 373, 374. Originally Section 77-602 provided that the judge in his discretion could commit to the Training School for Boys all persons of the age of 16 years or under who had been duly convicted in the courts of this state of crimes not punishable by death or imprisonment for life. However, this Section was amended by the acts of 1937, pp. 758, 759, increasing the age limit from 16 to 18 years of age, and further by the acts of 1943, pp. 566, 568, adding the provision for re-transfer to the Tattnall State Prison. Construing Sections 77-602, 77-603 and 77-604 together, it is my opinion that the governing authorities of the Georgia State Training School for Boys may in their discretion transfer to the Georgia State Prison at Tattnall persons within the ages and under the conditions enumerated in Section 77-602, and it would be the duty of the governing authorities of the Georgia State Prison at Tattnall to receive such persons and hold them until they shall have arrived at the age of 21 years, where the commitment is for an indeterminate sentence, unless such persons have been re-transferred to the Georgia Training School for Boys or otherwise released as provided by law. Your attention is called to that part of the commitment of the Judge of the Superior Court of Muscogee County in which it is specifically provided that the persons in question were to be transferred to the Tattnall State Prison in the discretion of the governing authorities of the Georgia Training School for Boys. PRISONS AND PRISONERS-Labor on 4-H Projects Convict labor may legally be used in the construction of 4-H Club projects, since such work is of public nature. Honorable Herman Talmadge Governor of Georgia May 15, 1952 There is no clear authority for the use of convict labor for construction of 4-H Club projects, but neither is there any prohibition against such use, and in view of general law and previous views expressed in opinions of the Attorney General, I feel that convict labor may legally be utilized in this case. Section 77-331 of the Code of Georgia of 1933 provides: "No convict labor shall be used in competition with skilled mechapical free labor, nor under any contract by the terms of which the contractor is interested in the quantity of work a convict may be required to do per day; it being the fixed policy of this State that the control and management of its convicts, both felony and misdemeanor, shall never pass from it and its public officials into 154 the control and management of any private corporation or person." And Section 16 of the Act creating the State Board of Corrections (Ga. Laws 1946, p. 46) provides, in part as follows: "The theory of prison work shall be based on occupational and vocational training, and not on business conducted for profit or in competition with private enterprise and free labor. The provisions of this Section shall not apply to county public works camps and State Highway camps." Section 6 of the same Act of 1946 provides in part: "The State Board of Corrections shall adopt rules governing the assignment, housing, working, feeding, clothing, treatment, discipline, rehabilitation, training and hospitalization of all prisoners coming under its custody." Under these provisions of law, the Attorney General advised the Director of the State Board of Corrections in a letter dated November 23, 1949, that convict labor could be used in clearing approximately 160 acres of land in Liberty County as a part of Georgia's contribution of one-half the cost of a Soil Conservation Experiment Station project, jointly shared with the Federal Government. (Opinions of the Attorney General, 1948-49, p. 618). Previous opinions of the Attorney General have also approved the use of convict labor for maintenance of State-Aid roads (May 29, 1947 to Director, State Highway Department, Opinions 1945-47, p. 421; Sept. 25, 1947 to Acting Governor, Opinions 1945-47, p. 424), for erection of a county hospital (July 24, 1947 to Director, State Board of Corrections, Opinions 1945-47, p. 422), and for repair of a municipal public school building (Sept. 8, 1947 to Hon. Will Ed Smith, Attorney-at-Law, Eastman, Georgia, Opinions 1945-47, p. 423). Mr. Sutton's letter states that the 4-H Club is a part of the Agricultural Extension Service of the College of Agriculture of the University of Georgia. He also states in his letter that the Extension Service is financed by funds appropriated to the University of Georgia by the General Assembly, and that County Agents and Home Demonstration Agents, who are representatives of the College of Agriculture, spend 40% of their time in 4-H Club work. Mr. Sutton recites these facts based on records which he says are on file in the State Extension Office and in the offices of the Dean of the College and President of the University. The land upon which the project is to be erected is owned by the United States Government and held by the State of Georgia under a 99-year lease, expiring in the year 2049. One of the obligations of the State of Georgia assumed under the terms of the lease is the construction of a 4-H Club camp upon the leased premises at a cost of not less than $50,000.00. While the course of movement of public funds does not provide an infallible test of public authority, it most generally serves as a rather dependable guide. In view of the nature of 4-H Club work, its sources of' revenue in state monies, and the public ownership and control of the premises here in question, I certainly feel that this is a project within the meaning of "public works." In view of the law above cited, the public nature of the work herein proposed, and the previous opinions of this office, it is my opinion that convict labor can be used in connection with the 4-H Club project at Rock Eagle Lake so long as control and management of the convicts remains in the Board of Corrections and does not pass to any private corporation or person. . 155 PROFESSIONS, BUSINESSES AND TRADES-Accountants-Illegal Practice Engaging in the business of public accounting without first having been registered with the State Board of Accountancy would be in violation of Code Section 84-215. Honorable R. C. Coleman, Joint Secretary State Examining Boards January 8, 1952 FACTS: Business Services, Inc., a corporation located in Thomasville, Georgia, is listed in the 1950-51 City Directory of Thomasville under the classification "Accountants-Public". This directory is published by Miller Publishing Company, Asheville, N. C. The corporation is listed in the 1951 Thomasville telephone directory under the following classifications: "Accountants", "Auditors", "Bookkeeping Service", and "Tax Service". On the door of its office Business Services, Inc. offers the following services: Accounting, Tax Returns, Audits, Systems. The president of Business Services, Inc. is Mr. Julian A. Turrentine, who at one time was bookkeeper, and there is no certified public accountant or registered public accountant employed by the corporation. QUESTION: Do the above facts constitute a violation of the law? OPINION: Section 84-215 of the Annotated Code of Georgia of 1933 provides as follows: "84-215. Registration of accountants; fees; employees of certified account- ants.-Within six months after this law (Sections 84-201,84-207, 84-215 to 84-217, 84-9902) takes effect, any person, or authorized representative of a corporation or firm, who shall be engaged in the practice of public accounting and who maintains an office for such purpose in the State of Georgia on the date of enactment of this law, shall apply for registration with the State Board of Accountancy, and upon the production of satisfactory evidence that such person, or authorized representative of a corporation or firm was so engaged on said date, the Board shall register such applicant. Any person otherwise qualified to make such application for registration who is a member of the armed forces of the United States on the date this law becomes effective may make such application within six months after the date of his honorable discharge from such service. "Such registration shall be conclusive evidence of the right of such person, corporation or firm to engage in the practice of public accounting in the State of Georgia, but shall not be construed in any way as indicating that the State Board of Accountancy has approved the educational and professional experience and qualifications of the registrant. No person, firm copartnership, association or corporation after the date of enactment of this law, except as hereinbefore provided, shall engage in or use the style or title of public accountant unless the State Board of Accountancy has approved the qualifications of the registrant. Each such registered public accountant shall pay a registration fee of $5 and shall annually thereafter on or before July 1 of each year renew his registration by the payment of a fee of $5. "Nothing contained in this Chapter shall be construed to prohibit the employment by a certified public accountant or registered accountant permitted to engage in the practice of public accounting in the State of Georgia, of persons who have neither received certificates admitting them to practice as certified public accountants or clerks: Provided, that such employees work under the control and supervision of certified public accountants or registered public account- 156 ants, and do not certify to any one the accuracy or verification of audits or statements: and Provided further, that such employees do not hold themselves out as engaged in the practice of public accounting. (Acts 1943, pp. 363, 366.)" Section 84-217 of the Annotated Code of Georgia provides as follows: "Definition of 'public accountant.'-For the purpose of this law (Sections 84-201, 84-207, 84-215 to 84-217, 84-9902) a public accountant shall be defined as a person, firm or corporation having an established place of business and offering to perform for the general public any and all general accounting services. (Acts 1943, pp. 363, 369) ." Section 84-9902 of the Annotated Code of Georgia provides as follows: "84-9902. Penalties for violating Chapter 84-2, relating to certified public accountants.-If any person shall hold himself out as having received a certificate provided for in Chapter 84-2 on the subject of certified public accountants, or shall assume to practice thereunder as a certified public accountant, or use the initials "C.P.A." without having received such certificate or if the same shall have been revoked he shall be guilty of a misdemeanor, and shall be sentenced to pay not exceeding $500 or less than $200. If any person, firm, corporation or association shall hold himself out as having been registered as a public accountant as provided for in section 84-215, or shall assume to practice thereunder as a registered accountant without having been so registered by the Board of Accountancy of this State, or if said registration shall have been revoked, he shall be guilty of a misdemeanor and sentenced to pay not exceeding $500 or less than $200. Any person who shall violate any other provision of Chapter 84-2 shall be guilty of a misdemeanor and shall on conviction be punished as provided by law. (Acts 1908, p. 86; 1935, pp. 93, 95; 1943, pp. 363, 368.)" It is my opinion that under the facts stated, the corporation would be guilty of violating Code Section 84-215 and, upon conviction, would be punishable as provided in Code Section 84-9902. PROFESSIONS, BUSINESSES AND TRADES-Architects The law does not prescribe a penalty for the unlicensed practice of architecture, although possibly any contract made by an unlicensed person might be void. Honorable R. C. Coleman, Joint Secretary State Examining Boards August 5, 1952 This will acknowledge receipt of your letter and the enclosure of a letter from Mr. Joseph Cohen, member of the State Board for Examination, Qualification and Registration of Architects. Mr. Cohen states that two persons have made plans for an extension to a shop building for the Modern Coach Lines in Albany. He states that neither of the two persons are registered architects and that they did not sign the plan as architects. He further states that the Modern Coach Lines accepted these plans, ordered a contract, and the City of Albany issued a building permit for the building which is now under construction. You request an opinion as to whether there is a violation of the State Architects' Law in this particular situation. You further request an opinion as to whose responsibility it is for the enforcement of the law. The act governing the licensing of architects was passed in 1919 and with amendments through the year 1931 was codified as Chapter 84-3 of the Code of Georgia. The main amendment since that time was passed at the recent session of the General Assembly and may be found in Georgia Laws 1952, page 457. The 157 Court of Appeals, in the case of Brown v. Glass, 46 Ga. App. 323, stated as follows in headnotes 3 and 4: . "3. In the instant case the statute (Ga. L. 1919, p. 125; Michie's Code, 1926, Sec. 1754 (41) et seq.), whose caption sets forth its purpose as being 'an act to make it unlawful for any person to use the title of "architect" in the State of Georgia,' without first complying with the requirements therein imposed, seems throughout not only to studiously refrain from prohibiting the doing of work by any person for another such as might come within the scope of an architect's business as defined by the act, but the statute emphasizes throughout that the inhibition relates only to a person fraudulently posing as an architect when he in fact is not entitled to such a title. Under Section 13 of the act, 'any person wishing to practice architecture in this State, who, before this Act goes into effect, shall not have been engaged in the practice of architecture in this State under the title of architect, shall before being entitled to be, or known as an architect, secure' a certificate as therein provided. As to the penalty, Section 26 of the act provides as follows: 'That on and after the passage of this act the use of the title Architect or Registered Architect, or the use of any word or any letters or figures indicated or intended to imply that the person using the same is an Architect or Registered Architect, without compliance with the provisions of this act,' shall be deemed a misdemeanor. In other words, it is unlawful for any person not recognized by the governing authorities as an architect to do the work of an architect while falsely holding himself out as an architect. Work appropriate to the business of an architect, as defined by the act, is not prohibited in terms or by reasonable implication, but only the false pretense of serving under the patented name of 'architect' when he in fact is not entitled so to do. In these respects the act in question is wholly different from the provisions of various other statutes relating to other professions which have been dealt with by the courts. In those statutes,-such, for example, as those dealing with the medical profession,the inhibition is not limited to merely practicing medicine under the pretense of being a doctor when he is not, but in practicing at all unless properly licensed. "4. The instant case being a suit for services by one who does not describe himself as an architect, and there being nothing in the petition to indicate that he held himself out as such to the defendant, or pretended to be an architect when in fact he was not, the court did not err in sustaining plaintiff's certiorari excepting to the judgment of the municipal court dismissing his suit on demurrer." It thus follows that unless some change was made subsequent to the decision in the above styled case the same conclusion would be reached in the instant situation. The 1952 amendment changed several Code Sections. Section 84-302 now contains the following statement: "Except as otherwise provided in this Act, no person shall practice architecture in the State of Georgia or use the title 'architect' or 'registered architect' or any words, letters, figures, or any other device indicating or intending to imply that he or she is an architect without having qualified as required by this Act." (Emphasis supplied). Section 84-301 defines the practice of architecture. Section 84-321 now reads in part as follows: "In order to safeguard life and property no person shall be allowed to practice architecture unless he has the qualifications and competency required by this chapter ... Otherwise any person who shall be engaged in the planning or design for the erection, enlargement or alteration of any building or buildings for others, or furnishing architectural supervision of the construction thereof shall be deemed to be practicing architecture and be required to register under this chapter, and to secure all annual renewals of such registration as conditioned precedent to his so doing. The term 'building' in this chapter shall be defined under Section 84-301." 158 The changes made by the 1952 amendatory act would seem to be sufficient to substantiate a ruling that any person desiring to perform the acts defined as the practice of architecture must be licensed as required in the act. The court, in the Brown v. Glass case, supra, stated in headnote 2 as follows: "2. It is a general rule that when a statute requiring a license and registration for those seeking to engage in the practice of a trade or profession is not for the purpose of raising revenue, but has for its primary intent the protection of the public from injury by preventing the practice of such trade or profession by incompetent, irresponsible, or unfit persons, none other than those meeting the prerequisites of the statute are authorized to engage in such practice. This is true whether the statute expressly and in terms forbids it or not, or whether it imposes a penalty for non-compliance. The intent and purpose of the statute,that is, whether enacted for the purpose of raising revenue or to protect the public welfare,-may be indicated to some extent by the revenue which the State may exact for itself, but more often and more clearly by the safeguards made to protect the public from being imposed upon by incompetent or unfit persons who might seek to engage in such practice. Such purpose and intent may be manifested in various ways, such as requiring each person seeking a license to practice such trade or profession to first stand an examination by some prescribed authority as to his skill and knowledge in and of matters pertaining thereto, or by requiring applicants seeking registration to first give bond and security for the benefit of any who might be injured by wrongful or unskillful practice, or by requiring proof of good character before being licensed and registered. Any or all of these or other precautions may be made a prerequisite to registration for practice. In all such cases the mandate of the statute requiring such license and registration prior to the practice of such trade or profession is equivalent to a prohibition to engage therein without first complying with its provisions, whether expressly so stated or not, and whether or not a pena,lty for such violation be prescribed; the result being that a failure to comply with the requirements of such statute renders contracts made by those unauthorized to practice such pro fession void and unenforceable." (Emphasis supplied). The 1952 amendatory act, while changing Section 84-9903 of the Code, which is the penalty provision, did not make a substantial change so that the persons under discussion would be subject to the penalty provided therein. Therefore, I am of the opinion that even though there is the possibility that the contracts made in the instant situation might be void and unenforceable, no criminal action can be instituted against the two persons and there is no statutory authority for the Board to act in any manner. I wish to emphasize that I am not holding that the contracts are void and unenforceable inasmuch as that is a matter purely for the courts to decide. PROFESIONS, BUSINESSES AND TRADES-Chiropodists Chiropodists are authorized to handle and deal in narcotic drugs in this state. May 22, 1952 Honorable P. D. Horkan Chief Drug Inspector Georgia State Board of Pharmacy You request that I render an opinion as to whether Chiropodists are authorized to handle or otherwise deal in narcotic drugs in the State of Georgia. Your request stems from the question of whether Chiropodists are entitled to register under the Federal Narcotic Law known as the Harrison Narcotic Act. 159 The Uniform Narcotic Act passed in 1935 and codified as Chapter 42-8 of the Code authorizes in Section 42-806 the sale of narcotic drugs to a physician, and in 42-808 authorizes a physician to dispense narcotic drugs. 42-802 (2) defines physician as follows: "(2) 'Physician' means a person authorized by law to practice medicine in this State and any other person authorized by law to treat sick and injured human beings in this State and to use narcotic drugs in connection with such treatment." A Chiropodist would not be included in the phrase "to practice medicine". See Georgia Association of Osteop,athic Physicians and Surgeons v. Allen, Collector of Internal Revenue, 31 F. Supp. 206 (Affirmed 112 F. 2d 52). Therefore, if they are included within the definition of physician, it must be by virtue of the last phrase of 42-802 (2) reading: "... any other person authorized by law to treat sick and injured human beings in this State and to use narcotic drugs in connection with such treatment." It must now be determined if Chiropodists are authorized by law to do the things set out in the above provision. Section 84-601 of the Code reads as follows: "'Chiropody' (podiatry), for the purpose of this Chapter, means the diagnosis, medical, surgical, mechanical, manipulative and electrical treatment limited to the ailments of the human foot and leg. No chiropodist shall do any amputation or use any anaesthetic other than local." This language is similar to the Florida statutes on the subject, and in an opinion dated November 7, 1944 to Mr. M. H. Doss, Director, State Bureau of Narcotics, Florida State Board of Health, the Attorney General of Florida held as follows: "It is my opinion these statutes when given their plain meaning and are construed together, authorize a chiropodist to administer or prescribe narcotic drugs to the extent necessary for medical, surgical and palliative treatment of ailments of the human foot or leg, except the amputation thereof, but not otherwise. You will note that Section 461-01 expressly provides that chiropody practice shall include (not exclude) the use and prescription of local anesthetics. So long as a chiropodilt honestly and legitimately prescribes narcotic drugs within the limits of the special branch of the medical profession in which he is licensed to practice, he is acting within the authority granted him by law." The language of the Georgia statute is also similar to that of the Michigan statute, and the Michigan Supreme Court, in the case of Fowler v. Michigan Board of Pharmacy, 312 Mich. 505 (20 N. W. 2d 680), held that the narcotic and chiropody acts taken together indicate that chiropodists may use local anesthetics, including narcotics, and hence licensed chiropodists were entitled to mandamus to compel issuance of narcotic permits. Similar language has been found in other states and licenses have been issued. I, therefore, reach the conclusion that Chiropodists are qualified to handle narcotic drugs in this state and consequently be registered under the Harrison Narcotic Act. PROFESSIONS, BUSINESSES AND TRADES-Detectives (Unofficial) There are no state laws regulating the practicing of the profession of a detective. February 13, 1952 Dr. Charles R. Cooper You request information as to the operation of a private detective agency under the Georgia laws. I wish to inform you that there are no state laws pertaining to this matter, and I suggest that you contact your city officials and 160 ascertain from them what city ordinances they have relating to the operation of a private detective agency. PROFESSIONS, BUSINESSES AND TRADES-Naturopaths Any person who practices the methods designated by the Naturopathic Practice Act as "naturopathic", upon conviction, shall be punished as for a misdemeanor. Honorable E. J. Walton Honorable John L. McCallum Honorable R. C. Coleman Georgia Board of Naturopathic Examiners June 6,1952 You ask the following question: "Is it a violation of the Naturopathic Practice Act for persons not licensed under this Act and not otherwise specifically exempted from it to practice the methods designated by this Act as naturopathy?" The Act governing the practice of naturopathy may be found in Georgia Laws 1950, p. 168. Section 14 of the Act reads as follows: "That any person who shall practice or attempt to practice naturopathy or any of its branches, or who shall hold himself out in any manner as a naturopathic manipulator or practitioner, without first obtaining a license as provided in this Act, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished as for a misdemeanor." It is evident from the reading of the above-quoted section that the answer to your question is Yes. PROFESSIONS, BUSINESSES AND TRADES-Optometry (Unofficial) The definition of "optometry" embraces the practice of opticianary. Honorable Beecher E. Stallard February 21, 1952 You request that I give you the laws of this State relative to the practice of Optometry. Under the Acts of 1916, page 84, as amended by the Acts of 1931, p. 737, there was established a Board of Commissioners in Optometry charged with the duty and responsibility of examining and issuing licenses to persons desiring to engage in the practice of Optometry in this state. This law has been codified in Chapter 84-11 of the 1933 Annotated Code of Georgia and your specific atten- tion is directed to Section 84-1101 which defines the practice of "Optometry" to be "the employment of any means, other than the use of drugs, for the measurement of the powers of vision and the adaptation of lenses for the aid of same." I believe you will find from a study of the above definition that it will cover the practice of "opticianary." 161 PROFESSIONS, BUSINESSES AND TRADES-Physical Therapists 1. The State Examining Board is without authority to issue a license under the Physical Therapists Practice Act to an applicant without an examination. 2. Said board is without authority to permit an applicant to take an examination unless certain specified qualifications are met. June 4, 1952 Honorable R. C. Coleman Joint Secretary State Examining Boards This will acknowledge receipt of your letter the second paragraph of which reads as follows: "The Board would like to know if they have the authority under Section 3, paragraph (d) to issue a license to an applicant without examination, and if they can give an examination to an applicant under Section 3, paragraph (e) who does not meet either of the requirements in Section 3, paragraph (d)." Section 3 of the Physical Therapists Practice Act (Acts of 1951, p. 175) 1provides as follows: "Conditions of Registration. To be eligible for registration by the board as a physical therapist an applicant must: (a) Be at least twenty-one years old. (b) Be of good moral character. (c) Have been graduated by an approved high school. (d) Have been graduated either: 1. By a school of physical therapy approved by the board; or 2. By a school of physical education approved by the board, and in addi- tion have completed to the statisfaction of the board an approved course in physical therapy; or 3. By a school of nursing approved by the board, and in addition have completed to the satisfaction of the board an approved course in physical thereapy; and (e) Either (1) Pass to the satisfaction of the board an examination conducted by it to determine his fitness for practice as a physical therapist; or, (2) Be entitled to registration without examination as provided in Section 5 and Section 6 of this Act." It is my opinion that the Board does not have authority under Section 3 (d) to issue a license to an applicant v.'i.thout examination. It is also my opinion that the Board is without authority to give an examination to an applicant under Section 3 (e) who does not meet either of the requirements in Section 3, paragraph (d). PROFESSIONS, BUSINESSES AND TRADES-Alien Physicians The State Board of Medical Examiners is without authority to grant a temporary license to an alien physician who has not filed his declaration of intention to become a citizen of the United States. Honorable R. C. Coleman, Joint Secretary State Examining Boards October 28, 1952 You state that you are enclosing correspondence with Dr. Eugene Y. C. Hua of Battey State Hospital, Rome, Georgia. You say that the "State Board of Medical Examiners at the meeting on 162 October 16th requested us to secure from you an opm10n as to whether the Board could issue him a temporary license to practice at Battey State Hospital under Section 84-927 of the Medical Practice Act, which requires first citizenship papers." Paragraph 2 of the letter dated June 2, 1952, written by Dr. Rufus F. Payne, reads as follows: "He has just been informed by the Immigration Service that he has had his application approved for the granting of status of permanent residence. This, of course, requires an Act of Congress and, as you probably understand, these Bills are passed by Congress once a year covering all the people recommended by the Naturalization Service. He has been in this country four years and consequently would' have only one more year before becoming eligible for United States Citizenship." Section 84-925 of the Code reads as follows: "The State Board of Medical Examiners shall not issue a license to practice medicine in this State to any person who was not born or naturalized in the United States, or who is not a citizen of the United States." Section 84-927 of the Code, which you refer to in your letter, among other things, provides as follows: "Notwithstanding the foregoing provisions, any person residing in Georgia who has been a resident of Georgia not less than three months, and can show that he is of good moral character and that he is a graduate of a medical school approved by the Association of American Medical Colleges, and/or the State Board of Medical Examiners of Georgia, and who shall have filled his declaration of intention to become a citizen of the United States of America may be granted a temporary license to practice medicine in a State institution under proper medical supervision. . . . " The information in your letter shows that Dr. Hua has not filed his declaration of intention to become a citizen of the United States of Americ~. It is, therefore, my opinion that the Board is without authority to grant the temporary license to Dr. Hua. PROFESSIONS, BUSINESSES AND TRADES-Real Estate Branch Office A real estate broker may legally establish a branch office with a salesman in charge. December 10, 1952 Honorable Leo F. Griffin, Chairman Georgia Real Estate Commission You ask "whether under the law a broker can establish a branch office with salesman in charge." Section 84-1410 of the 1933 Annotated Code of Georgia reads, in part, as follows: "Any person, partnership or corporation desiring to act as real estate broker, or any person desiring to act as real estate salesman, shall file with the Georgia Real Estate Commission through the Joint-Secretary, State Examining Boards, an application for license in such form and detail as the Commission shall prescribe, setting for the following: "(a) The name and residence address of the applicant. If the applicant be a partnership, the name and residence address of each member thereof; or, if the applicant be a corporation, the name and residence address of each of its officers. 163 "(b) The place, or places, including the city, town or village where the business is to be conducted, with the street number and the manner in which said place of business is designated." (Emphasis supplied) It is quite clear from reading paragraph (b) above that a broker may operate a broker's office in more than one locality, or a branch office. Section 84-1402 of the 1933 Annotated Code of Georgia reads, in part, and defines a "real estate salesman" as follows: " 'Real estate salesman' means a person employed by a licensed real estate broker to sell or offer for sale, to buy or offer to buy, to negotiate the purchase, sale or exchange of real estate, or to lease, rent, or offer to lease, rent or place for rent any real estate for or on behalf of such real estate broker; also any person, other than bookkeepers and stenographers, employed by any real estate broker, as that ter:tn is defined in this section." In defining "real estate salesman" this section clearly gives to the salesman the right to sell, offer for sale, buy, or offer to buy, negotiate the purchase, sale or exchange of real estate, and so long as a salesman is employed by a licensed real estate broker to consummate the sale of property, he may do so regardless of where the property is located or where his office is located. Having held that a real estate broker can establish a branch office and a salesman employed by such broker can operate the same, your question must be answered in the affirmative. PROFESSIONS, BUSINESSES AND TRADES-Real Estate Salesmen (Unofficial) Section 84-1422 of the Code relating to real estate salesmen has not been repealed. ,May 13, 1952 Messrs. Shaw and Shaw Your question, as I understand it, is whether or not Section 84-1422 of the Code of Georgia of 1933, which section relates to real estate salesmen, was repealed by the act approved February 23, 1949 (Ga. Laws, 1949, pps. 943-947). The act creating the Georgia Real Estate Commission must necessarily be construed as a whole and in the light of all amendments thereto. The act of 1949 carried a general repealing clause repealing all laws and parts of laws in conflict therewith which were not specifically repealed in the act. After careful study, I do not find any portion of Section 84-1422 in conflict with the act of 1949 and said section was not specifically repealed in the act. Section 3 of the Act of 1949 amended Code Section 84-1409 and the qualifications set out therein are cumulative to Section 84-1422; that is, the Georgia Real Estate Commission shall recognize in lieu of a recommendation and statements required of resident applicants the license issued to a non-resident broker or salesman by any other state. However, a non-resident shall not be granted a broker's license until he has passed an examination provided by the Real Estate Commission and an application for a broker's license is made only after having first been licensed as a salesman in the State of Georgia for at least twelve months and having been actively engaged in the real estate business as a salesman, employed by a real estate broker licensed in this state for such a period. A non-resident broker or salesman is required under the law to have a definite place of business in another state while a resident broker or salesman is required to have an established place of business in Georgia. I think the law is clear that non-resident real estate brokers and salesmen 164 are required to conform to all the proVIsions of the law pertaining to each respectively, except as to maintaining an office in the state and being permitted to use their non-resident license in lieu of the recommendation and statements required of residents upon application for a license. After a non-resident salesman has met the requirements of law and made application for a non-resident broker's license, he is required under the act of 1949 to pass an examination, as above stated. Then the Commission shall issue a license to such broker upon the payment of the license fee and the further compliance with Section 84-1422. Therefore, it is my opinion that Section 84-142 of the Code of Georgia of 1933 is not repealed by the Act approved February 23, 1949. PROFESSIONS, BUSINESSES AND TRADES-Real Estate Salesmen (Unofficial.) A person dividing his own property into lots and making sales thereof to persons who desire to build homes thereon is not required to secure a real estate broker's license. December 18, 1952 Mr. E. E. Wantland You state that you own a tract of land adjacent to Robins Air Force Base; that you are dividing this tract of land into lots and selling them to persons who desire to build homes thereon. You will not be required to secure the real estate broker's license in order to sell your own property. PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers It is not necessary that each member of a partnership dealing in real estate have a real estate brokers' license, where such partner does not perform the duties of a real estate broker but merely participates in the profits and losses of the business. December 10, 1952 Honorable Leo F. Griffin, Chairman Georgia Real Estate Commission You refer to an attached letter from Messrs. Sanford & Lokey, of Augusta, Georgia. You request that I give you an opinion as to whether or not it is absolutely mandatory that each member of a partnership be required to have a real estate broker's license. Section 84-1415 reads as follows: "The fees for licenses shall be as follows: (1) for a broker's license the annual fee shall be $25. If the licensee is a corporation the license issued to it shall entitle one official or representative thereof to engage in the business of a real estate broker within the meaning of this Chapter. For all other officers or representatives of a licensed corporation who shall engage in the business of a real estate broker within the meaning of this Chapter the annual fee shall be $10. If the licensee is a partnership the license issued to it shall entitle one member of said partnership to engage in the business of a real estate broker within the meaning of this Chapter. For every other member of such partnership the annual fee shall be $10. "(2) For a salesman's license, the annual fee shall be $5. All applications for license shall be accompanied by the license fee herein provided. All licenses shall 165 expire upon the 31st day 'Of Decemlrer of each year." You will please note from reading the above quoted Code section that the annual fee for a broker's license is $25 for a partnership, and for every other member of such partnership the annual broker's fee shall be $10. You will also note that in reading this Code section relative to officers or representatives ~f a licensed corporation, they must engage in the business of a real estate broker within the meaning of Chapter 84-1415 of the Georgia Code Annotated. Therefore, each member of a partnership is not required to have a real estate broker's license if such member or members do not engage in the business of a real estate broker, within the meaning of the law relating to real estate brokers and salesmen. For instance, if a member of a partnership is not active or does not perform the duties of a real estate broker but merely enjoys the profits and shares the losses of the business, certainly he would not be required to have a real estate broker's license. And also, if a real estate salesman is a member of a partnership but does not perform the duties of a broker, he likewise would not be required to have a real estate broker's license. In view of what I have said above, it is not mandatory that each member of a partnership have a real estate broker's license. PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers Properly construed, persons operating a business for the purpose of obtaining rental units for clients are required to register as real estate brokers, notwithstanding the fact that such persons do not themselves participate in the actual negotiation of the lease contract (overruling opinion of January 29, 1952). April 11, 1952 Honorable Leo P. Griffin Chairman, Georgia Real Estate Commission You request that I review my official opinion of January 29, 1952 which held that certain persons operating a business for the purpose of obtaining rental units for their clients did not come under the Georgia Real Estate law. The facts in this case, briefly stated, are as follows: Mr. and Mrs. Lee VanLew operate what is known as the Augusta Housing Service in Augusta, Georgia. They charge a fee of $18.00 for their services in procuring a house, apartment, or room. They get the $18.00 for their services whether or not they are able to procure a house, room, or apartment. They get out a bulletin and send a list of prospects to all landlords and real estate agencies of which they have a record. Some of them they contact by telephone and advise about their customers. When they find someone with a vacancy they then advise their client or customer of the vacancy and advise them that they may get in touch with the owner or real estate agent having the premises for rent. They do not negotiate or arrange a contract, they merely find available housing facilities and put the owner and prospective tenant in contact with each other. A careful consideration of these facts, as related to our statute (Code Section 84-1402) demonstrates that my opinion on this matter is dependent upon the proper definition of the word "negotiate" and the term "attempt to negotiate." There is no question that an interest in real estate is conveyed even in a tenancy at will. The interest conveyed increases or decreases proportionately with the length and type of tenancy created. In 45 C. J. 1374, the word "negotiate" is defined as follows: , 166 "To arrange for or procure by negotiation; to bring about by mutual arrangement, discussion, or bargaining; to conclude by bargain, treaty or agreement; to dispose of by sale or transfer; to effect something; to pass; to procure by mutual intercourse and agreement with another ... the word 'negotiate' may be us~ in two senses, as meaning to discuss or arrange for a sale or bargain, or the preliminaries of a business transaction . . . " The case of Baird v. Krancer, 246 NYS 85, 88, 138 Misc. 360, has this to say on the subject: "A broker 'negotiates' just as much when he brings the parties together in such frame of mind .that they can by themselves evolve a plan of procedure, as when he himself carries on the discussion and personally induces an agreement to accept a specific provision." In accord with this case is that of Grammer v. Skagit Valley Lumber Company, 299 P. 376, 380, 162 Wash. 677. The Court in Allen and Homes v. Powell, 125 Ga. 438 (54 S. E. 137) quotes in the following language: "'Negotiations' is a very broad term. It embraces everything from the first approach of the one who desires to purchase to the one from whom the purchase is to be made, to the final consummation of the contract of purchase . " It is, therefore apparent that a proper interpretation of our statute, codified as 84-1402, which states that this chapter means, among other things, to apply to those persons who "attempt to negotiate a sale, exchange, purchase or rental of any estate or interest in real estate," would bring persons operating under the instant statement of facts within the purview of those persons defined by the terms of the act as Real Estate Brokers. A recent decision in Wisconsin, as yet unreported, was that of Madelyn Fink v. Wisconsin Real Estate Board, decided in the Circuit Court of Bane County, Wisconsin, on March 6, 1952. This case arose under a similar set of facts as the instant case and involved the interpretation of a statute which is identical with the Georgia statute. It is, therefore, my opinion that my conclusion of law reached in the opinion dated January 29, 1952 must be reversed in order to comply with the decision and authorities outlined above. It is my opinion that the term Real Eatate Broker includes Mr. and Mrs. VanLew, and that their business comes within the jurisdiction of the Georgia Real Estate Commission. PUBLIC DEFENSE-National Guard-Armory Contracts The contracts for the construction of armories to be used by the national guard, referred to below, are not in conflict with state law, but the law does require that all supplies, materials and equipment be contracted for on the basis of competitive bids. June 30, 1952 The Adjutant General Department of Defense By your letter you transmitted to me certain contract forms drafted by the National Guard Bureau and you asked for me to review them to determine if they al:e in conflict with state laws. These contracts are for (1) the construction of armories to be used by National Guard units and (2) architect-engineer services in connection with the supervision of the construction of these armories. On ;May 21, 1952, I gave you my opinion as to the legality of the agreement between the Department of Army and Air Force and the State of Georgia 167 incident to the armory construction program under the provisions of Public Law 783, 81st Congress and concluded that the agreement could be properly entered into under the Constitution and laws of Georgia. As I understand it, this joint armory construction program is to be financed 75% by the Federal Government and 25% by the State of Georgia. Certain requirements are made by federal law which are conditions placed upon state participation in the armory construction program. Further, it appears that the title to these properties is vested in the state conditioned only upon the state's maintenance and utilization in the training of National Guard personnel. With regard to the construction contract which you transmitted for review, I conclude that the terms of the contract itself are not in conflict with state law but your attention is invited to Georgia Code Annotated, Pocket Part, Chapter 40-19 and the regulations of the Supervisor of Purchases made pursuant thereto dealing with the procedures by which contracts are entered into. Section 40-1910 requires that supplies, materials and equipment be contracted on the basis of competitive bids. With regard to the contract for architect-engineer services which you transmitted for review, I conclude that the terms of the contract itself are not in conflict with state law. I am of the opinion that the contract for architectengineer services may be negotiated inasmuch as these services are of a professional nature like unto legal, accounting or auditing services. PUBLIC DEFENSE-Contracts The contracts between the Department of the Army and the Air Force National Guard Bureau and the State of Georgia for the acquisition and maintenance of armory and training facilities are in proper form, and the Adjutant General is authorized to execute said agreements whenever so directed by the Governor. Col. Charlie F. Camp Assistant Adjutant General May 21, 1952 You ask for official opinion as to (1) whether or not the Form of Agreement between the Department of the Army and the Air Force National Guard Bureau and the State of Georgia as contained in a letter from the Chief of the National Guard Bureau of 7 March 1952, in execution of the policies contained in the Department of Defense Directive No. 800.09-2 is in conflict with state law, and (2) whether or not the Adjutant General is the proper official to execute this agreement in behalf of the State of Georgia. It is my opinion that the Form of Agreement contained in the above mentioned Department of Defense Directive is not in conflict with state law. Contracts by the state with public agencies and public corporations for a term not exceeding fifty (50) years are authorized by Article VII, Section VI, Paragraph I (Code Section 2-5901 (a)) of the Constitution of the State of Georgia of 1945, so long as the contracts deal with activities and transactions which the state or subdivisions thereof are by law authorized to undertake. It is my view that the agreement does not pledge the credit of this state beyond the requirement that the facilities to be constructed pursuant to this agreement are to be maintained and preserved in a state of good repair by the state. I am of the opinion that the acquisition and maintenance of armory and training facilities are such activities as have been authorized by the Legislature. 168 Georgia Code Annotated, Section 86-109, Pocket Part, provides that the Governor may take all necessary steps to "obtain all appropriations, property and equipment, now or hereafter provided by the United States or authorized by law for the use, aid, equipment, benefit, or instruction of the National Guard." In response to your question as to who is the proper state official to execute this agreement, I am of the opinion that the Adjutant General as the executive head of the Military Division, Department of Public Defense, is authorized to enter into such agreement whenever so directed by the Governor as Commanderin-Chief of the militia of the state. See, Georgia Code Annotated, Section 86-202, Pocket Part. PUBLIC DEFENSE-Contracts-National Guard The contract between the State Department of Defense and the National Guard Bureau is not in conflict with state law, as the contract recognizes that its performance is conditioned upon the appropriation of moneys by the state legislature. June 2, 1952 Col. Charlie F. Camp Assistant Adjutant General You ask for my opinion as to whether or not the attached service contract entered into between the State of Georgia (Adjutant General as contracting agency) and the Army and Air National Guard for the operation and maintenance of certain National Guard facilities is in conflict with state law. You ask the further question as to whether or not the state's duties under the contract could be let to a sub-contractor. It is my opinion that the service contract between the State Department of Defense and the National Guard Bureau is not in conflict with state law, inasmuch as the contract itself by Article VIII recognizes that its performance is conditioned upon the appropriation of moneys for such purposes by the State Legislature. I am further of the opinion that the sub-contracting of state's duties under the named service contract may properly be accomplished. PUBLIC DEFENSE-Contracts-National Guard The above contract is subject to the laws, rules and regulations of the State Supervisor of Purchases. June 4, 1952 Col. Charlie F. Camp Assistant Adjutant General On June 2, 1952, I advised you that your Department could enter into a sub-contract for certain services. In that opinion I failed to call your attention to the fact that such a contract as you contemplate would be subject to the laws rules and regulations of the State Supervisor of Purchases. See Georgia Code Anno. Pocket Part, Chap. 40-19. You will please accept this advice as a supplement to my opinion dated June 2, 1952. 169 PUBLIC DEFENSE-Acquisition of equipment by Municipalities In order to insure that the title to civil defense equipment procured by the federal government be vested in the municipalities furnishing matching funds, a contractual relationship should be entered into between the local subdivision and the Civil Defense Division of the Georgia Department of Defense, whereby the state would act as the agent of the municipality in procuring the equipment. Honorable Ernest Vandiver, State Director Department of Defense Nevember 26, 1952 You request that I advise what action should be taken to insure that title to civil defense equipment procured by the :Federal Government for which matching funds are provided by municipalities is vested in the municipality rather than in the State of Georgia. You enclosed a letter from the Atlanta Regional Office of the Federal Civil Defense Administration which takes the position that federal contribution may be made only to states but there is no reason why title to equipment should not rest in a political subdivision of the state, and that this is a matter to be worked out by the state and its subdivision under state law. I have reviewed the Federal Civil Defense Act of 1950 and the Georgia Civil Defense Act of 1951 and find that the procedure for such action is not expressly provided by either act. At the same time, however, I find no language in either the federal or state law which would prohibit such a result. Therefore, the problem appe:;~rs to be merely one of administration. I call your attention to that portion of the Georgia Civil Defense Act of 1951, codified as Section 86-1814 of the Georgia Code, Annotated Supplement, providing for lease or loan of state property to local civil defense organizations. I assume, however, that the lease arrangement is not satisfactory in all cases and you desire an outright purchase by the political subdivision. In that event, it would appear proper that a contractual relationship be entered into between the local subdivision and the. Civil Defense Division of the Georgia Department of Defense, whereby the former advances the funds necessary to match the federal contribution and designates the latter to act as its agent in procuring the desired equipment. The contract may provide for passage of title directly to the subdivision with the state acting solely as its agent. Further, since the F.C.D.A. holds the state responsible for compliance with the terms of the federal grant, the contract should contain the clause whereby the state may in turn hold the subdivision responsible for such compliance. PUBLIC DEFENSE-National Guard-Retirement Benefits Any officer who took the oath of office and accepted a comm1ss1on in the National Guard after August 21, 1916, has held that commission until reaching the age of 64 years, unless he has been retired prior to that time by reason of resignation, disability or other cause as provided by law, and would therefore be entitled to retirement benefits as provided by federal law. June 15, 1952 The Adjutant General Department of Defense You ask if there exists a state law subsequent to the law of 1899 fixing the 170 term of officers commissioned in the National Guard, or State Militia as it was then called, of Georgia. The purpose of this request according to your letter is to determine the eligibility of certain officers who were released from federal service after the first World War during the interim before the reorganization of the National Guard of 1920 and 1921 to participate in the retirement benefits of Public Law 810, enacted June 29, 1948 by the Congress of the United States. It is my opinion that any officer who took the oath of office and accepted a commission in the National Guard of the United States and of the State of Georgia after August 21, 1916, held a commission until he reached "the age of sixty-four years, unless retired prior to that time by reason of resignation, disability, or for cause to be determined by a court-martial legally convened for that purpose, and that vacancies among said officers shall be filled by appointment from the officers of the militia of this State." This term of office was fixed by Section 25 of an act of the General Assembly reorganizing the military forces of this state, approved August 21, 1916. See Ga. Laws 1916, p. 158, 167. It would therefore seem apparent that a commission accepted after August 21, 1916, would be in force until terminated by one of the conditions set forth in the above quoted section of the act of 1916. Therefore, it is my opinion that an officer separated or released from federal service after World War I would still have a commission in force and would still be subject to the call of the Governor of the state or the President of the United States pursuant to the National Defense Act of 1916, approved June 3, 1916, or the Georgia Military Code approved August'21, 1916. Illustrative is the case of Col. G. P. O'Keefe who on September 10, 1916, took the oath of office of Captain of Infantry commissioned to date from September 8, 1916. This commission was issued subsequent to both the federal and state acts of 1916 and at a time when the term of commission was as herein before stated. Therefore, unless he was discharged from the National Guard of Georgia for one of the reasons stated in Section 25 above quoted, it is my opinion that his commission was in force during this interim period. PUBLIC DEFENSE-Deeds-Reversionary Clauses Grants of property to the State of Georgia containing reversionary clauses are not favored, since the state might possibly thereby lose the value of any capital improvements made on the property affected. Colonel Charlie F. Camp May 26,1952 Asst. Adjutant General Pursuant to our conversation I am returning herewith the following documents: 1. Copy of a resolution providing for the City of Bainbridge to deed certain property to the State of Georgia, etc. 2. Copy of a deed from the City of Bainbridge from R. A. Griffin, Mayor, to the State of Georgia, dated July 5, 1949, and copy of a resolution thereto adopted. 3. Copy of motion adopted by City of Perry authorizing a gift to the State of Georgia by deed of that plot of ground known as the "Armory Grove"; together with a copy of a deed from the Mayor and Council of the City of Perry, dated April 30, 1949, covering said property and a copy of a letter relative thereto dated May 13, 1949. 4. Copy of an Executive Order signed by Governor Herman E. Talmadge, 171 dated April 1, 1949, reassigning the old Baldwin penal building to the Military Department. The suggestions made by the State Auditor, in pencil in the margins of the deed from the City of Bainbridge to the State of Georgia, meet with my approval. In fact, we have always refused to approve deeds to the State containing reversionary clauses that covered any period after capital improvements are made. I am sure you can understand my position in this connection. As you know there is a possibility of a succeeding administration discontinuing the use of the property as provided for in the conveyance after the state has expended large sums of money by way of capital investments. It is perfectly agreeable for the deed to contain a reversionary clause which provides that the property will revert to the grantor if the state fails to improve the property for the purposes stated within a given number of years. In other words, in the Bainbridge deed it would be proper to use the following reversionary clause: "This deed is accepted by the grantee herein with the specific covenant that should the above described premises not be improved for Military purposes within five years from the date of this deed the title to the premises shall revert to the grantor." What I have said with reference to the Bainbridge deed would apply to all conveyances to the state. PUBLIC FINANCE-County Depository (Unofficial) The ordinary has the duty and responsibility of designating a county depository for Wilkes County. Honorable B. I. Cheney November 25,1952 You request my opinion as to what authority in Wilkes County has the duty and responsibility of designating a County Depository for County funds. Georgia Laws, 1915, page 441, provides for a County Depository :for Wilkes County to be selected by the ordinary according to the procedure outlined therein. Any bank at the county site is made eligible. Georgia Laws, 1917 Extraordinary Session, page 436, creates a Board of Commissioners for Wilkes County and vests in said Board, in addition to other powers therein granted, "original jurisdiction and control in Wilkes County over . . . levying and collecting taxes and debts due sa!d county, disbursing public moneys for county purposes, and the execution of all laws in reference thereto, in auditing and allowing or rejecting all claims against Wilkes County." Since the act of 1917 did not confliat with or expressly repeal the act of 1915, I am of the opinion that both acts remained in force after the passage of the 1917 act and were to be construed conjunctively and harmoniously, as two local acts of equal dignity. In 1933 a general law was passed providing for designation of county depositories and having applicability throughout the State. (Ga. Laws 1933, page 78.) This was the first general law on the subject ever enacted by the General Assem- bly of Georgia. The same was codified as Chapter 8 of Title 89 of the 1933 Code of Georgia. Section 89-801 of the Code provides, in part, as :follows: "The county authorities shall designate one or more solvent banks as depositories of all county moneys ..." Thus, in 1933 a general law was adopted relating to the same subject matter as the local act of 1915, which applied only to Wilkes County. The language of 172 the general act of 1933 vests the power to designate the county depository in the county board or officer having jurisdiction over fiscal affairs of the county, and expressly recognizes both the ordinary and the county commissioners as possible "county authorities" within the definition of the statute. The question thus presented is wliether or not the act of 1933 had the effect of repealing the act of 1915 and placing the duties there imposed upon the Ordinary into the hands of the Board of Commissioners created by the act of 1917, having general control over fiscal affairs of the county. The act of 1933 did not expressly repeal or modify the act of 1915. If there was a repealer, such must have been implied because of conflict between the local and the general act or because the latter superseded the former by virtue of its comprehensiveness. The Supreme Court and Court of Appeals of Georgia have held that a general act will not usually operate to repeal a prior local act unless the two are in irreconcilable conflict or unless the general act manifests a legislative intent to enact exhaustive legislation to stand in lieu of all prior general, local and special enactments relating to the subject matter. (See Pausch v. Guerrard, 67 Ga. 319; Davis v. Dougherty County, 116 Ga. 491; Glover v. The State, 126 Ga. 594; Hammond v. The State, 10 Ga. App. 143.) It cannot be said that the act of 1915 conflicts irreconcilably with the act of 1933. Instead, the two are rather in harmony. To determine whether the 1933 act was intended to be exhaustive and to supersede the 1915 act, however, we must go one step further to an act of 1935. The 1935 act (Ga. Laws 1935, page 836) is a local act applying to Wilkes County and amending the 1915 act so as to make all banks within Wilkes County eligible to be designated county depository. Since the act of 1935 was passed two years after the general act of 1933 and expressly amended the act of 1915, I am of the opinion that this is evidence of legislative sanction of the act of 1915 and expressly repudiates the suggestion of legislative intent to supersede the act of 1915 by adoption of the 1933 statute. In brief, since the General Assembly has not expressly repealed the act of 1915 and has not adopted general law in irreconcilable conflict therewith, but has given the 1915 act legislative sanction by amending it in 1935, subsequent to adoption of the general act of 1933, it is my considered opinion that the act of 1915 remains of force in Wilkes County and the ordinary of Wilkes County is empowered to designate the county depository according to the terms of the acts of 1915 and 1935, except in particulars wherein those acts may be found to be in irreconcilable conflict with the act of 1933. PUBLIC FINANCE-Municipal Indebtedness (Unofficial) The authority of the city of Elberton to incur an additional indebtedness is discussed. Mr. Raymonde Stapleton October 21, 1952 In Ga. Laws 1929, page 1089, the charter of the City of Elberton was amended, as follows: "Provided no debt for an amount exceeding $10,000,.00 shall be created ... until such proposed debt is approved by a majority vote of the qualified voters." In your letter you request an opinion as to whether the City of Elberton could give a bank a note for $7,500.00 one week and another note for $7,500.00 another week and not exceed thereby the charter limitations above mentioned. 173 I think that all authorities agree limitations of amounts of municipal indebtedness may be imposed by statute and by charter. Generally, such statutory limitations of amounts of municipal indebtedness are considered mandatory, so that no debt can be created in excess thereof. Furtermore, everyone dealing with a municipal corporation is charged with notices of the limitations of the amount of its indebtedness. I wish to invite your attention to two cases which I suggest that you read, namely, DeJarnette v. Hospital Authority of Albany, 195 Ga. 189, and also, the case of Tate v City of Elberton, 136 Ga. 301. I construe it to be the rule of Jaw in this state that the limitations of the amount of a municipal indebtedness is not violated by incurring an indebtedness for current expenses, where such indebtedness is payable from current revenues. In support of this view, please see the case of Gulf Paving Company v. Atlanta, 149 Ga. 114. Under the above ruling a municipal corporation having an aggregate indebtedness exceeding the limitations imposed by law is not powerless to create an additional debt for its ordinary current expenses, if the municipality has in its treasury or at its immediate command by the collection of taxes levied, sufficient funds therefor. 64 CJS p. 371. 'Therefore, in answer to the question which you have propounded, it is my opinion that the City of Elberton cannot exceed the limitations placed by the statute for notes to the bank in an aggregate excess of $10,000.00, unless such indebtedness is for current expenses and where such indebtedness can be paid from current revenue. Therefor, I believe that it is necessary at the outset to determine for what purpose the money is to be used which would exceed the charter limitations. PUBLIC HEALTH-Abortions The laws relating to therapeutic abortions are stated. January 30, 1952 Dr. T. F. Sellers, Director State Department of Public Health You state that a practicing physician has requested you to give him the law in Georgia relative to therapeutic abortions and that you would appreciate my advising you if we have any law on this subject. The only laws of the State relative to abortion are contained in the following Code Sections: "26-1101. Use of medicine with intent to murder unborn child -Any person who shall administer to any woman, pregnant with a child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, or shall be advised by two physicians to be necessary for such purpose, shall, in case the death of child or mother be thereby produced, be guilty of an assault with intent to murder. "26-1102. Abortion; punishment of.-Any person who shall wilfully administer to any pregnant woman any medicine, drug, or substance, or anything whatever, or shall employ any instrument or means whatever, with intent thereby to produce the miscarriage or abortion of any such woman, unless the same shall be necessary to preserve the life of such woman, or shall be advised by two physicians to be necessary for that purpose, shall be guilty of a misdemeanor. "26-1103. Foeticide; punishment.-The wilful killing of an unborn child so 174 far developed as to be ordinarily called 'quick', by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be punished by death or imprisonment for life, as the jury may recommend. "26-1104. Punishment of persons advising killing of infants.-If any person shall counsel, advise, or direct a woman to kill the child with which she is pregnant, and after she is delivered of such child she shall kill it, every such person so advising or directing shall be deemed an accessory before the fact to such murder, and shall have the same punishment as the principal. "26-1106. Concealment of death of bastard child.-If any woman shall conceal or attempt to conceal the death of any issue of her body, which, if it were born alive, would" be a bastard, so that it may not come to light whether it was murdered or not, she shall be guilty of a misdemeanor." PUBLIC HEALTH-University Hospital-Disposition of bodies The University Hospital is without authority to dispose of the bodies of unclaimed still-born infants for a period of 60 days after their reception. January 29, 1952 Honorable W. G Messer Purchasing Agent The University Hospital FACTS: Frequently still-born infants are left unclaimed at The University Hospital where they rapidly deteriorate even though stored in the morgue refrigerator. QUESTION: May The University Hospital dispose of the bodies of still-born infants when these bodies have been unclaimed for a period of thirty days? LAW: I call your attention to Code Sections 88-702-705, inclusive, which set forth the distribution of unclaimed dead bodies in this State. I do not believe that Chapter 88-1101-15, inclusive, although it specifically mentions still-births, would alter the general rule relating to dead bodies. Code Sections 88-702-705, inclusive, are cited below for your consideration: "88-702. (1756) Delivery of certain bodies.-All public officers of this State and their assistants, and all officers and their deputies of every county, city, town or other municipality, and of every prison, chain gang, morgue, public hospital, sanatorium or sanatarium (except the Milledgeville State Hospital, which institution shall have authority to perform autopsies on the dead bodies of persons dying as patients in said institution, all in the discretion of the superintendent and medical staff of said institution), having control over any dead human body, not dead from contagious or infectious disease, and required to be buried at public expense, are required to notify the board of distribution, or such person as may from time to time be designated in writing by said board, or its duly authorized officer, whenever any such body comes into their possession or control, and shall, without fee or reward, deliver such body, and suffer the board and its duly authorized agents who may comply with the provisions of this Chapter, to remove such body, to be used only within this State, solely for the advancement of medical science: Provided, that no such notice shall be given, nor shall any such body be delivered, if any person, claiming to be and satisfying the authorities in charge of said body that he or she is of any degree of kin, or is related by marriage to, or socially or otherwise connected with and interested in the deceased, shall claim the said body for burial, 175 but it shall be at once surrendered to such person for interment,. or shall be buried at public expense at the request of such claimant if a relative by blood or a connection by marriage and financially unable to supply such body with burial. (Acts 1887, p. 87; 1918, pp. 114, 115; 1919, p. 324; 1920, p. 130.) "Cross-Reference.-Penalties for violations of this Chapter, see 88-9918 to 88-9921. "88-703. (1757) Travelers dying suddenly.-Such notice shall not be given or such body be delivered if the deceased person was a traveler who died suddenly, in which case said body shall be buried. (Acts 1887, p. 87.) "88-704. (1758) How long retained.-Such body shall in each and every instance be held and kept by the person or persons having charge or control of it at least 24 hours after death, before delivery to said board or its agent, during which period notice of the death of such person shall be posted at the courthouse door of the county in which said body is held. (Acts 1887, p. 87.) "88-705. (1759) Distribution.--:-Said board, or its duly authorized agent, may take such bodies so delivered, and shall, upon receiving them, distribute them to and among the aforesaid schools or colleges, for lectures and demonstrations by said schools or colleges-the number assigned to each to be based upon the number of bona fide students in each dissecting or operative surgery class, which number of students shall be reported by the schools or colleges to the board at such times as it may direct: Provided, that said schools or colleges, upon receiving them and before any use is made of them, and without unnecessary mutilation or dissecting, shall cause them to be properly embalmed and carefully preserved and kept for a period of 60 days from the day of their reception, and shall deliver them properly prepared for burial to any persons mentioned and described in section 88-702, who shall claim such bodies for burial within or before the expiration of said period of 60 days, and satisfy the officers of said school or college that they are such persons as are under said section entitled to said bodies. If at the expiration of 60 days said bodies have not been claimed for burial, in the manner and by the person or persons herein described, said bodies shall then be used for the purposes specified by said schools or colleges: Provided further, that when said bodies have been so used and are no longer needed or serviceable for the objects herein mentioned, they shall be decently interred by the said schools or colleges. (Acts 1887, pp. 87, 89.) "Cross-reference.-See 88-9918 to 88-9920 for penal provisions." OPINION: I am, therefore, of the opinion that it would not have the authority to dispose of the bodies of unclaimed still-born infants after the expiration of thirty days, but that The University Hospital would have to hold these bodies for a period of sixty days prior to disposing of them. PUBLIC HEALTH-Rabies Control If any of the rules and regulations for rabies control promulgated by the Dougherty Board of Health conflict with those of the state, the latter must control. September 9, 1952 Dr. T. F. Sellers Director, Department of Public Health You enclose a copy of the "Rules and Regulations for Rabies Control, Control of Vicious Animals and Strays," adopted by the Dougherty County Board of Health. You ask that I give you my opinion as to the legality of these rules 178 and regulations which have already been adopted by the County Board of Health of Dougherty County. As a matter of information, your attention is called to the provisions of Chapter 88-2A of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, relating to rabies, which is a general statute covering the subject matter of rabies and which states that the provisions of the chapter shall be enforced of the county boards of health. It sets up a J':,;thod by which certain dogs may be inoculated and how tags shall be furnished free to the counties by the State Department of Health. It also provides a ma:ximum inoculation fee to include the cost of the vaccina. It would be my view, without reference to or applying to any particular county department of health, that any rule and regulation of a county health department in direct conflict with any of the provisions of this chapter would be of no force and effect. PUBLIC HEALTH-Sterilization (Unofficial) The law does not provide for the sterilization for the mentally incompetent except where the latter are confined in certain designated institutions. April 9, 1952 Dr. Ernest Thompson You state that your attention has been called to a family in which a widowed mother has been left with two daughters, twelve and fourteen years of age. It is noted that the mother and daughters are mentally incompetent, a guardian has been appointed, and that the fourteen year old daughter is sexually promiscuous. You further state that the girls and the guardian might not agree to sterilization and you ask my advice as to the legal question involved in having a sterilization performed on one of the girls. I am pleased to call your attention to the provisions of the Eugenics Sterilization Act of 1937 (Ga. Laws 1937, p. 414, as amended by the acts of 1943, p. 202), which provides only for a sterilization operation upon the persons specifically named in the following section of said Act, codified in the 1933 Annotated Code of Georgia as Section 99-1303 (1951 Cumulative Pocket Part): "99-1303. When it shall appear to the superintendent, manager, or director of any State home or hospital for mental or physical disease, or any State colony or institution for the care of the mentally or physically defective, deficient, or diseased, or the warden or superintendent of any State prison or penitentiary, correction school or reformatory, detention home, or camp, that a patient or inmate under the care of or in such institution, would be likely, if released without sterilization, to procreate a child, or children, who would have a tendency to serious physical, mental, or nervous disease or deficiency, said superintendent or manager, after a consultation with his medical staff or any medical authority, shall submit to the State Board of Eugenics a recommendation that a surgical operation be performed upon said person for the prevention of parenthood. Such operation shall be a vasectomy for males, and a salpingectomy for females, or some similar operation that would not unsex the patient or inmate thereof." There is no other statutory authority in this State authorizing eugenic sterilization upon any person except as provided in the above cited Code Section. 177 PUBLIC OFFICERS-Conviction of Felony (Unofficial) A person who has been convicted of a felony involving moral turpitude is not eligible to vote or to hold public office in this state. January 2, 1952 Honorable W. H. Sheppard You request information concerning the eligilibity of candidates for county office. Your attention is called to Article 2, Section 2, Paragraph 1 of the 1945 Constitution of Georgia, which provides: "Paragraph I. Registration of electors; who disfranchised. The General Assembly may provide, from time to time for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned. 2nd. Idiots and insane persons." You will note that the crimes involving moral turpitude, as enumerated in the above Constitutional provision, provided that they must be punished by the laws of this state with imprisonment in the penitentiary. Your attention is also directed to Section 89-101 of the 1933 Code of Georgia, which provides in Sub-section 3 thereof as follows: "3. Persons convicted of felony.-Any person convicted and sentenced finally for any felony, under the laws of this or any other State, involving moral turpitude, the offense being also a felony in this State, unless restored by a pardon from the proper executive, under the great seal of the State, to all the rights of citizenship." PUBLIC PROPERTY-Disposal Public property may only be sold by action of the General Assembly or by the governor under the powers specifically delegated to him by the General Assembly. Honorable Jim L. Gillis, Sr., Chairman State Highway Board of Georgia October 2, 1952 You request me to advise you if the State Highway Department is author- ized by law to dispose of State Highway property that is no longer useful to the Department, and if so what procedure should be followed in making disposi- tion of such property. . No authority in the State Government is authorized to dispose of state property except the General Assembly. On the other hand, the General As- sembly has authorized the Governor to sell, or otherwise dispose of, state property once he determines that the same has become unserviceable and cannot be beneficially and advantageously used under all relevant circumstances. There- fore, once it is determined by the Governor that the property to which you refer in your letter has become unserviceable and cannot be beneficially and advantageously used under all relevant circumstances, he may by proper execu- tive order direct the sale or disposition of the same as provided for by Code Section 91-804, et seq., as defined in the case of Dyer et al., Commissioners, v. Martilli et al, 132 Ga. p. 445. 178 The usual procedure followed in the sale and disposition of state property is for the proper state department head to submit to the Governor for determination a statement that the property has become unserviceable, etc., which requests him to issue an executive order directing that the same be sold and disposed of in such manner and under such conditions as he may deem advisable. PUBLIC PROPERTY-Disposal The State Board of Education is without authority to make a sale of timber growing on the Camp John Hope property in .Macon County and use the proceeds therefrom in constructing a recreational hall on the camp site; if in the exercise of good management practices, such timber is sold, the proceeds therefrom must go in the general funds of the state treasury. Dr. M. D. Collins State Superintendent of Schools September 25, 1952 I am pleased to acknowledge receipt of your letter relative to the possibility of the State Department of Education harvesting timber on the Camp John Hope Property in Macon County, and using the proceeds to construct a recreational and assembly hall on the Camp site. You state that the timber is a surplus item insofar as the camp is con cerned and can be harvested in such a manner as not to injure the young stand of growing timber which will be left to beautify the camp site. You request that I advise you of the procedure under which the State Board of Education could proceed to sell this surplus timber. I have reviewed the laws relating to the State Department of Education and do not find any express grant of authority to this agency to sell or dispose of timber, forest products or any other state property. However, this state agency is vested with the immediate control and management of the Camp John Hope property in Macon County and is charged with the responsibility of operating and maintaining this property and the facilities thereon in keeping with recognized and sound methods of preservation and maintenance. Under this resposibility, it would certainly have not only the right but the duty to see that forests or woodlands of the Camp John Hope property are maintained in a manner which would assure the greatest growth, beautification and usability of the trees and timber thereon in keeping with sound park and forest practices. This would, in my opinion, include the harvesting of mature and over-mature timber, diseased trees, crooked trees, undesirable species, deformed trees and thinning in overcrowded stands, when the purpose of such action is to assure reproduction and continuous growth of more desirable trees and increase the value of the forest features of the Camp John Hope property areas in future years. Although the State Department of Education would be authorized to do the things above pointed out, I am of the opinion that under the present law, it does not have authority to sell or dispose of the timber accumulated from such activity. The General Assembly has provided a method and manner in which unserviceable public property may be sold or otherwise disposed of. Section 91-804 of the Code of Georgia provides: "When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the 179 same shall be made in said book, and the money received therefrom shall be paid into the treasury." Section 91-805 of the Code of Georgia provides: "The 'proper authority" referred to in this Chapter is the Governor, for all officers of the State; and the county commissioners or other officers having charge of county matters, for all officers of the county." In the case of Dyer et al. v. Martin et al., 132 Ga. 445, and the case of Trapnell et al. v. Candler County et al., 146 Ga. 617, the Supreme Court of Georgia in construing the above quoted Code sections held: "When any public property shall be unserviceable, it may be sold or otherwise disposed of by order of the proper authority. Public property becomes unserviceable in the purview of this law, so as to empower the proper authority to sell the same, where such property can not be beneficially or advantageously used under all the circumstances." lf the State Department of Education, in the exercise of its duties in operating the Camp John Hope property in Macon County, deeming it advisable for the future growth and development of the trees and forest areas of this property and to assure greater reproduction and continuous growth of the desirable and valuable stands or species of trees or the need for expanding recreational fa cilities, should harvest within recognized and standard methods of forestry control, mature and over-mature timber, diseased trees, crooked trees, undesirable species, deformed trees or thinning of crowded stands, and then would not have need or use for such trees or timber or have the facilities for converting it into usable material for state purposes, it would be my opinion that such facts should be brought to the attention of the Governor in writing for a determination under the above-cited authorities, if, in fact, such harvested forest products are unserviceable and cannot be beneficially or advantageously used for state purposes under all of the circumstances. If in the event the Governor, acting upon the information furnished him, should determine that such harvested forest products are unserviceable for state purposes and cannot be beneficially or advantageously used under all the cir cumstances, he would be authorized to direct by executive order such forest products to be sold or otherwise disposed of under such restrictions and con ditions which he may deem advisable for the best interest and protection of the state, and the funds derived therefrom paid into the state treasury. I would suggest that in following the above-outlined procedure, you obtain the services of the Director of the Georgia Forestry Commission to act in an advisory capacity to the State Department of Education where there is anticipated the removal of any trees or timber from any area under the jurisdiction of the State Department of Education to assure the use of standard and sound forestry practices and management in harvesting the forest products therefrom, and to furnish the Governor with his written views as to the advisability of the harvesting of timber from the Camp John Hope property in order that it may be incorporated in the executive order of the Governor if he should so desire to issue one. Of course, you understand that the proceeds received from the sale of such forest products, as here under consideration, could not be retained and used by the State Department of Education without such funds being deposited in the treasury of the State of Georgia and appropriated therefrom by the General Assembly. I would further suggest that you consult the State Budget Bureau relative to the availability of any funds that could be used to construct a recreational 180 and assembly hall on the Camp John Hope property in the event that funds were realized from the sale of surplus forest products and deposited in the state treasury. PUBLIC REVENUE-Ad Valorem Taxes-Banking Corporations The executive order of the governor reducing collection of state ad valorem taxes to one quarter of one mill affects all state ad valorem taxes, including the tax on shares of national banking associations and other similar businesses. July 16, 1952 Honorable W. Harvey Atkinson, Director Property Tax Division I am pleased to acknowledge receipt of your recent letter requesting a ruling on the effect and application of the Governor's executive order of February, 1952, whereby 14 of one mill was to be levied by the State on all property subject to tax, ad valorem wise for general purposes including the support of the common schools, upon Senate Resolution No. 52 which reads in part as follows: "Provided, however, that until some other method permitted by the laws of the United States for the taxation of national banking associations or corporations is enacted by the General Assembly for the taxation of the shares of stock of banking corporations and other monied capital coming into competition with such banking corporations, such property may be taxed at a rate not exceeding five (5) mills on each dollar of the value th,ereof. If the people shall ratify such amendment by a majority of the electors qualified to vote for members of the General Assembly voting thereon, such amendment shall become a part of the Constitution of this State. Section 92-5703 of the Annotated Code of Georgia of 1933 provides as follows: "All property or other things of value subject to taxation shall b; returned by the taxpayers as provided by law at its fair market value, and shall be taxed according to its value on-a levy to be made by the Governor, with the assistance of the Comptroller General." (Acts 1851-2, p. 291; 1909, p. 37.) By his executive order of February, 1952, the Governor was acting under the authority granted in the above quoted provision of law and I am of the opinion that this executive order affected all state ad valorem taxes, including those mentioned in the above Senate Resolution. PUBLIC REVENUE-Ad Valorem Tax-Co-op Marketing Associations (Unofficial) A corporation organized under the Co-Operative Marketing Act is legally required to make ad valorem tax returns. September 26, 1952 Honorable Slaton Lowery You ask whether or not a corporation organized under the Cooperative Marketing Act should make ad valorem tax returns. The Cooperative .Marketing Act itself contains no tax exemptions. Georgia Laws, 1952, pages 273, 275 exempts such organizations from income taxes but the exemption of property is to be found in Section 92-201. of the George Code 181 Annotated. I find no exemptions from such tax for these organizations in this Code Section, and it is my unofficial and personal view that they are not exempt from the payment of ad valorem taxes. However, I call your attention to Section 5-603 of the Code of Georgia of 1933. PUBLIC REVENUE-Ad Valorem Taxation-Date of Making Return (Unofficial) The act of the General Assembly referred to, providing that application for homestead exemption need not be made each year, has not affected the statute requiring a person to file a tax return on or by April 1. April 1, 1952 Honorable Robert E. Coleman You request an interpretation of House Bill No. 17, (Ga. Laws 1952, p. 371), proviaing that application for homestead exemption need not be made each year. I am of the opinion that this statute is not in conflict with the statute requiring a person to file a tax return on, or by April 1, and the penalties stipulated therein will still be in force notwithstanding the passage of this statute. PUBLIC REVENUE-Ad Valorem Taxes-Educational and Religious Institutions (Unofficial) 1. Station wagons and other vehicles owned and operated by the Salvation Army, and also busses and other vehicles owned and operated by private schools are subject to ad valorem taxation. 2. A home owned by a Catholic Church and occupied exclusively by Catholic nuns is not exempt from ad valorem taxes. 3. A building operated by the Salvation Army wherein religious services are conducted is exempt from ad valorem taxation. 4. A home operated for the benefit of transients is exempt from ad valorem taxation, assuming said home is operated as a public charity. 5. A home occupied by officers and members of the Salvation Army is not exempt from ad valorem taxation. November 26, 1952 Honorable C. V. Stanton I wish to acknowledge receipt of your letter in which you state: "We beg to inquire if the following property is subject to state, county and municipal ad valorem taxation. "Station wagons, cars and trucks owned and operated by the Salvation Army in their work; also buses or trucks or other motor vehicles owned and operated by private schools or academies. This latter inquiry is directed to you on account of St. Joseph's Academy, a Catholic institution here which receives pupils of all denominations but charges tuition fees. They operate a bus for transporting their pupils to and from the institution. "Also is a home owned by the Catholic Church and occupied exclusively by nuns, who teach in this institution; is such property exempt? "Also, the Salvation Army owns a building here in which they conduct religious services and we are sure this must be exempt but they also own and operate a transient home of considerable value and also have a home for the officers and members of the Salvation Army in another section of town." Station wagons, cars and trucks owned and operated by the Salvation 182 Army in their work and also busses and trucks owned and operated by private schools or academies are subject to ad valorem taxation. I assume from your letter that St. Joseph's Academy, as well as the home used by the nuns who teach in this academy, is owned and maintained as an educational institution by the Catholic Church. The Supreme Court of our State in the case of Elder, Revenue Collector, et a!. v. Trustees of Atlanta University, 194 Ga. 716 (headnote 2) held as follows: "Dwelling-houses are owned by an educational institution, located immediately across the street from its main campu.s, occupied, in accordance with the purpose for which they were erected, as residences by members of the faculty, with no rent paid, although the occupancy of said residences is taken into consideration in determining the salaries of the professors living there, it being a part of the duty of those members of the faculty who occupy said residences to exercise supervision and control of the deportment of the students, and said residences often being used by the students for conferences with faculty members who occupy them. Such dwellings are comprehended within the meaning of the phrase, 'all buildings erected for and used as a college,' as the same is employed in article 7, section 2, paragraph 2, of the constitution of this State (Code of 1933, Sec. 2-5002), and are thereby rendered exempt from taxation under the Code, Sec. 92-201." The Constitution of the State of Georgia, Section 2-5404, in enumerating property which the Legislature might exempt from taxation, includes "all buildings erected for and used as a college, incorporated academy or other seminary of learning." The Legislature of this State, in accordance with this provision of the Constitution in Code Section 92-201, exempted "all buildings erected for and used as a college, non-profit hospital, incorporated academy or other seminary of learning, and also all funds or property held or used as endowment by such colleges; ... provided, further, that all said exemptions shall apply only to such colleges, non-profit hospitals, incorporated academies or other seminaries of learning as are open to the general public; ... " The building which the Salvation Army owns and in which they conduct religious services is exempt from ad valorem taxes. The Constitution of the State of Georgia, Section 2-5404, in enumerating exemptions from taxation, provides "places of religious worship" may be exempted by the Legislature, and the Legislature, in Code Section 92-201, exempted "places of religious worship" from taxation. The transient home owned and operated by the Salvation Army would be exempt from ad valorem taxation if the home is operated as a public charity. The Constitutional provision together with the Code Section previously quoted also provides for the exemption from taxation of "all institutions of purely public charity." The home for the officers and members of the Salvation Army would be subject to ad valorem taxes because it cannot be classified as a place of religious worship, and in my opinion it would be comparable to a home owned and maintained by a church as a residence for its pastor. The Supreme Court of our State in the case of .The Wardens, Et~. of St. Mark's Church vs. The Mayor, etc., of Brunswick, 78 Ga. 541 held: "The property which belongs to a church is not exempt from taxation simply because it belongs to a church. This property is liable to taxation; indeed, the legislature has no power to exempt it from taxation; and any law passed by the legislature to exempt property belonging to a church or anybody else from taxation, is simply void, under the constitution of this State, except so far as 183 set out in article VII, section I, paragraph I of the constitution, where it is declared that, 'The General Assembly may, by law, exempt from taxation all public property, places of religious worship or burial; all institutions of purely public charity; all buildings erected for and used as a college, incorporated academy, or other seminary of learning; the real and personal estate of any public library, and that of any other literary association used by or connected with such library; all books and philosophical apparatus; and all paintings and statury of any company or association, kept in a public hall, and not held as merchandise or for purposes of sale or gain; provided, the property so exempted be not used for purposes of private or corporate profit or income.' The 4th paragraph declares that, 'All laws exempting property from taxation, other than the property herein enumerated, shall be void.'" "It is very manifest that land upon which is a parsonage, although it may belong to a church, is not a place of public worship. The language of the constitution is that the legislature may exempt 'places of religious worship' from taxation; but the legislature cannot exempt a parsonage, it not being a place of public worship. We think, therefore, that the mayor and council of the city of Brunswick had a right to assess against this property the value of the improvements which the city had laid down along and across the property; and that the chancellor did right to refuse the injunction prayed for." PUBLIC REVENUE--Ad Valorem Taxes-Corporation Franchise Taxes-NonResident Electric Cooperative (1) An electric cooperative organized under North Carolina law and doing business in this state is not exempt from the payment of state ad valorem taxes. (2) Said cooperative, if not operated for pecuniary gain or profit is exempt from payment of corporate franchise taxes under the laws of this state. February 15, 1952 Honorable W. Harvey Atkinson Director, Property and License Tax Unit FACTS: A foreign corporation organized under the laws of North Carolina for the purpose of furnishing its members electricity, a cooperative, which is chartered under similar statutes as provided in our electrical membership cooperative statutes, is doing business in this state. QUESTION 1: Is such a cooperative as shown above exempt from ad valorem taxes in this state? QUESTION 2: Is such cooperative as shown above exempt from corporate franchise taxes in this state? ANSWERS: In answer to the first question, I would like to call your attention to that part of Section 2-5404 of the 1933 Code of Georgia, 1945 Constitution of the State of Georgia, which states as follows: "All cooperative, non-profit, membership corporations organized under the laws of this State for the purpose of engaging in rural electrification, -- * * *, and all of the real and personal property owned or held by such corpora- tions for such purpose, are hereby exempted from all taxation, state, county, 184 municipal, school district and political or territorial subdivisions of the State having the authority to levy taxes." It will be noted, from the above constitutional exemption, that this exemption specifically applies to "corporations organized under the laws of this State." Any provision for exemption from taxation by a state government must be strictly construed since it is in derogation of the Common Law and the power of the sovereign. It should be remembered that Section 2-5404 of the 1933 Code of Georgia, 1945 Constitution of the State of Georgia, begins with the statement that "The General Assembly may, by law, exempt from taxation" certain property as designated in the remainder of that Section. As you know, this statement limits the power of the General Assembly to exempt property within the State of Georgia from taxation to the extent designated in that Section. Therefore, it is my opinion that an electrical membership corporation organized under the laws of another state would not qualify for exemption under this constitutional exemption. In answer to the second question, it should be remembered that a franchise tax is a tax by a sovereign on the privilege of a corporation functioning as a private individual within its jurisdiction. It is not a tax on property owned or held by a corporation. There is no constitutional limitation on the power of the General Assembly to exempt from taxation anything other than property located within this State. Therefore, it is within the power of the General Assembly to exempt by statute those businesses which it feels deserve a favored status under the Franchise Tax Laws of this State. Section 92-2403 of the 1933 Code of Georgia, defines the Foreign Corporations which shall pay a franchise tax in this State, and states as follows: "All corporations incorporated or organized under the laws of any other State, Territory, or Nation, * * *, except those not operated for pecuniary gain or profit, in addition to all other taxes now required of them by law, are hereby required to pay each year an annual license or occupation tax for the privilege of carrying on their businesses within this State, * * *." The provision for the payment of franchise taxes by foreign corporations excludes those corporations "not operated for pecuniary gain or profit." It must be determined as a question of fact whether such a foreign corporation is within the character to which this exemption would apply. Therefore, it is my opinion that if a foreign corporation is one organized under the laws of another State, Territory or Nation, not for pecuniary gain or profit, it is exempt from the payment of the tax provided in Section 92-2403 of the 1933 Code of Georgia. PUBLIC REVENUE-Ad Valorem-Property Exemption (Unofficial) There are no state laws exempting from taxation personal property purchased with pension funds which were exempt from state and federal income taxes. February 5, 1952 Lt. Col. Roy E. Bevel In reply to your recent letter concerning tax exemptions on personal property purchased with pension funds, we have no law in the State of Georgia exempting property purchased with pension money that is exempt from State and Federal income taxes. 185 PUBLIC REVENUE--Ad Valorem Taxes-Military Reservations The state may legally impose taxes over all territory except that as to which jurisdiction has been ceded to the United States in a valid manner. Honorable W. Harvey Atkinson, Director Property and License Tax Unit June 26, 1952 You request my opinion as to the taxability of intangibles owned by a partnership organized for the sole purpose of performing contracts with the United States Government and maintaining its offices on a United States military reservation within this state. The question specifically raised is whether or not such a company is exempt from payment of intangibles tax by virtue of its location on a military reservation, jurisdiction over which has been ceded to the United States. Although your letter does not expressly state that the taxable situs of such company for intangible purposes is on the military reservation, I assume that you have found this fact to be true, or otherwise this opinion would be unnecessary. I mention this only because the letterhead of the taxpayer indicates that it maintains offices in both Macon and Albany, and it is possible that the taxable situs might be in one of these cities and not on a military reservation, in which case there cou!d be no doubt of its taxability. Assuming, however, that the taxable situs is within a military reservation, the question is controlled by my opinion of June 16, 1952, to the Honorable James T. Manning regarding the criminal jurisdiction of the state over such areas. I am enclosing a copy of that opini.tn for your reference. You will note that the effect of that opinion is to conclude that the various cession laws adopted by the General Assembly since 1927 were all ineffective to cede jurisdiction to the United States, except for the act of 1927 (Ga. Laws 1927, p. 352), in effect from August 23, 1927 to January 1, 1935, and the act of 1952 (Ga. Laws 1952, p. 264), insofar as the latter act relates to areas used by the Department of Defense. The United States has not obtained jurisdiction over any lands purchased in Georgia except in some manner conforming to the principles stated in the enclosed opinion. Thus, it becomes necessary to know the date at which each particular reservation was acquired by the United States and also whether acceptance has been designated by the United States as prescribed in Section 255 of Title 40 U.S.C.A., before the question of jurisdiction over a particular military reservation can be determined. After securing this information, the principles of the enclosed opinion may be applied in determining the question of taxability in a particular area. I might add that, in the subject case, the 1952 act does not appear applicable since it was not approved until February 15, 1952, while the taxpayer's liability arose on January 1, 1952. It is, therefore, my official opinion that the state retains its power to tax over all territory within the state except that over which jurisdiction has been ceded to the United States in some manner recognized as valid by the opinion above referred to. 186 PUBLIC REVENUE--Ad Valorem Taxes-Federal Property The state has jurisdiction, for purposes of taxation, of property of public utilities located on property in this state belonging to the federal government. May 20, 1952 Honorable W. Harvey Atkinson Director, Property Tax Division I am pleased to acknowledge receipt of your letter requesting an opm10n concerning the taxability of property of utility corporations located on ceded property owned by the United States Government and used by the Department of Defense, taking into consideration Code Section 15-302 of the Amtotated Code of Georgia, as amended by Senate Bill Number 265, Georgia Laws 1952, page 264. The amendment to the code section provides in part that: "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." In view of the wording of the above quoted Act I am of the opinion that the State of Georgia has jurisdiction over the property of public utilities located on property owned by the United States Government that is being used for defense purposes. This is based upon the assumption that the public utility owns the property and the state has retained civil jurisdiction in such cases. ,. PUBLIC REVENUE--Ad Valorem Taxation-Taxation o,f Inventory (Unofficial) The state does not have a special tax upon an inventory in a business, but such property is taxable under the general laws relating to ad valorem taxation. January 14, 1952 Legislative Council of the General Assembly State of South Carolina In reply to your recent letter requesting the actual mechanics involved in assessing and collecting tax on inventory in the State of Georgia, I will first call your attention to Code Section 92-6208 of the Annotated Code of Georgia which reads as follows: "92-6208. (1075) RETURN OF PERSONAL PROPERTY IN COUNTY WHERE BUSINESS CONDUCTED. All persons, companies, and corporations except railroad, telegraph, telephone, express, sleeping and palace car, and such other companies as are required to make returns of the value of their properties and franchises to the Comptroller General under the provisions of sections 92-2301 to 92-2309, 92-5901, and 92-5902, conducting any business enterprise upon realty not taxable in the county in which such persons reside or the office of the company or corporation is located, shall return for taxation their stock of merchandise, raw materials, machinery, live stock, guano, commercial fertilizer, and all other personalty employed in the operation of such business enterprises, together with the manufactured goods and all other property of such business enterprises, and notes and accounts made and the money used in the prosecution of such business enterprises on hand at the time for the valuation of property for taxation, including all personalty of whatsoever kind connected with or used in such enterprises in any manner whatsoever, in the county in which is taxable the realty wherein such business enter- 187 prises are located or carried on: Provided, that the agent in this State of any person, firm, or corporation resident without this State, who shall have on hand and for sale, storage, or otherwise, as such agent, merchandise or other property, including money, notes, accounts, bonds, stocks, etc., shall return the same for taxation to the tax receiver of the county wherein the same may be situated, to be taxed for State and county purposes as other property in this State is taxed. (Acts 1904, p. 54; 1927, pp. 94-96; 1935 p. 62.)" All property subject to ad valorem taxes in the State of Georgia, both state and county, must be returned to the tax receiver or the tax commissioner, as the case may be, in the various Counties of the State of Georgia in which said property is located. Intangible property is returned to the Commissioner of Revenue of the State of Georgia and a digest of such property is made up and returned to the tax collector of the county of which the taxpayer is a resident for collection by him. The tax collector of the various counties of the State of Georgia collect both state and county ad valorem taxes on all property except such property that is required to be returned to the Commissioner of Revenue. You will note, from the Code Section cited above, that the State of Georgia does not have a special inventory tax but such property is taxable under our general laws and is returned, assessed and collected as all other ad valorem taxes. PUBLIC REVENUE-Ad Valorem Taxes-Long Term Leases Ad valorem taxes are assessed against the owner of the property. As respects the 30-year lease in the instant case, the lessor is still considered the owner and it is his responsibility to return said property for taxation. May 23, 1952 Honorable W. Harvey Atkinson Director, Property and License Tax Division You state that a public utility has returned to the State Revenue Commissioner for ad valorem taxation certain property which it holds under a 30-year lease. The lease provides for an option to renew for a period of 20 years,. There is no option to purchase in said lease but the lessee public utility agrees to pay all taxes. You ask whether the lessor or the lessee public utility should return the property for taxes. Section 92-110 of the Code of Georgia of 1933 provides that taxes shall be charged against the owner of the property. In the case of leases for 99 years renewable forever or renewable for a like period, and in the case of leases for as long as a stipulated ground rent is paid, courts have generally held that the lessee is the owner and therefore the person against whom taxes are to be charged. In the instant case the property is not carried by the public utility in its plant account, and it has not become a part of the rate base. The mere fact that the lessee has contracted to pay the taxes imposed is of no importance in determining the person against whom the taxes are to be charged. Bibb National Bank vs. Colson, 162 Ga. 471; Decatur Building & Loan Association vs. Thigpen, 173 Ga. 363; Real Estate Loan Co. vs. Un~on City, 177 Ga. 55. It is my opinion, therefore, that the lessor is the owner within the meaning of Section 92-110 of the Code of Georgia of 1933, and he should return the property for taxes to the Tax Receiver of Fulton County beginning in 1953. I am returning herewith your correspondence file together with the lease contract in question. 188 PUBLIC REVENUE-Ad Valorem Tax-Release to Mortgagee (Unofficial) A mortgagee paying the ad valorem taxes due on real property covered by his mortgage is entitled to a release, notwithstanding the fact that the taxes on personal property located on said premises have not been paid. December 17, 1952 Mr. L. E. Foster You state the following: "I am enclosing one of several letters I have received from mortgage holders of real estate requesting that I give a release on the real property and leave the personal property for the owner to pay. Under date of August 7, 1946, I hold a letter from Mr. B. E. Thrasher which reads in part: 'We have been losing a lot of personal property taxes on account of the fact that mortgage holders have been allowed to pay tax on the real estate and not pay tax on the personal property included in the same return. Please see that all taxes are collected in the future before issuing a release.' Now will you please advise me if I can release the real property and leave the personal on the book and hope to get it. Please return letter attached and give me ruling at your earliest date, because taxes will be delinquent after December 20th.'' The letter of Mr. B. E. Thrasher, dated August 7, 1946, which you quote in your communication, was written by Mr. Thrasher in an effort to collect all the taxes due and upon what he considered the law at that time. The Supreme Court of our State on February 10, 1948, rendered an opinion in the case of Aldridge, Tax Collector, et al. v. Federal Land Bank of Columbia, 203 Ga. 285, holding that a tax collector was obligated to issue a receipt and release property covered by a security deed after the taxes had been paid on the property in cases where the defendant in fi. fa. had no real estate other than that covered in the security deed. This decision was a declaratory judgment construing the provisions of Code Section 92-5712. This section contains the following provision: " ... The officials charged with the collection of taxes for this State or for any subdivision of this State (including municipalities and all other subdivisions of the State and counties) and/or any transferee of said tax lien shall be required to accept payment of said taxes when tender is made as provided herein, shall issue a receipt showing such payment, and shall execute a release of said property from such lien for taxes, and the official or transferee accepting said payment and releasing said property shall be paid a fee of 50 cents for issuing said receipt and release.... " Under the decision herein mentioned and the Code Section hereinbefore quoted, it would be your duty, upon payment of the taxes on the property covered by the security deed, together with a fee of 50 cents, to issue a receipt for the taxes and a release of said property from the lien for the taxes. PUBLIC REVENUE-Ad Valorem Tax-Tax by Municipalities (Unofficial) A city may not legally assess ad valorem taxes against automobiles owned by non-residents although said automobiles are used within the city by employees of the owners. July 11, 1952 Mr. A. G. Wilson This will acknowledge receipt of your letter with reference to the assessment of city taxes against certain motor vehicles that are owned by corporations without the City of Lithonia but are used and enjoyed by people working for these corporations in going to and from work and over the week-ends and who are 189 residents of the City of Lithonia. Section 92-110 of the Code of Georgia of 1933, Annotated, provides as follows: "Taxes shall be charged against the owner of property if known, and against the specific property itself if the owner is not known. Life tenants, and those who own and enjoy the property, shall be chargeable with the taxes thereon. Hence, while the public may treat property as belonging either to the maker or the holder of a bond for title when the latter is in possession, yet as between the parties the one receiving the rents or enjoying the use shall be liable for the taxes." It appears from reading the above quoted code section and 1;1nder the facts contained in your letter, that the city taxes must be charged against the owner of the motor vehicles. The fact that persons residing in Lithonia enjoy the use of motor vehicles in pursuance of their work, which are owned by a corporation or person that is not a resident of the City of Lithonia would not subject such vehicle to assessment by the City of Lithonia. PUBLIC REVENUE-Ad Valorem Taxes-Intangibles The reduction of the state ad valorem tax from 5 mills to one-quarter mill, has not affected the right of counties and municipalities to tax intangibles. December 31, 1952 Honorable Charles D. Redwine Commissioner of Revenue You ask my opinion as to the effect of the Amendment to Article VII, Section I, Paragraph II-3 of the Constitution of 1945 on the Intangible Tax Act. I am of the opinion that the Constitutional Amendment, ratified by the voters in the last general election and which reduced the State's limitation from five (5) mills on each dollar of value of taxable property in the State to one-fourth ( 14) mill, does not place any limitation on intangible taxes levied by the General Assembly for the benefit of counties, municipalities and school districts. The purpose of the Constitutional Amendment in question was to take the state out of the field of ad valorem taxes insofar as it was practical and leave this field of taxation to the counties and municipalities. It was necessary for the state to retain in the Constitution the right to levy some amount in order that the state might continue its present functions in the assessment and collection of taxes on public utilities. Another purpose of the Amendment was to eliminate so far as practicable the inequalities existing in various counties in assessing real estate for the purpose of taxation. The Amendment to Article VII, Section I, Paragraph III of the Constitution of 1945, ratified by the voters at the last general election, which is codified as Section 2-5402 paragraph 3 of the Code, is as follows: "The levy of taxes on property for any one year by the General Assembly for all purposes, except to provide for repelling invasions, suppressing insurrections, or defending the State in time of war, shall not exceed one-fourth ( 14) mill on each dollar of the value of the property taxable in the State." This is the identical language used in the Constitution of 1945 except "onefourth ( 14) mill" has been substituted for the words "five mills." This provision of the Constitution limiting the tax levy to one-fourth ( 1.4) mill for all purposes can only mean all state purposes. Article VII, Section II, Paragraph I of the Constitution of 1945 enumerates the purposes for which the 190 legislature may exercise the power of taxation for state purposes. This paragraph is set out in Section 2-5501 of the Code as follows: "The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only: ... " Under the Constitution, the counties Of this State have the power to levy taxes for certain purposes if the General Assembly has delegated such powers. These purposes are set out in Article VII, Section IV, Paragraph I of the Constitution of 1945. This paragraph is codified as Section 2-5701 of the Code as follows: "The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except: ... " Certainly if the General Assembly has the right to delegate the power of taxation to political subdivisions, the General Assembly has within its residuum of constitutional powers the right to exercise such power for the benefit of political subdivisions. In the case of County of Bibb v. Winslett, 191 Ga. 860, the Supreme Court of Georgia had before it the question of whether or not a tax collector was entitled to commissions for collecting taxes under the Intangible Tax Act on that share due the county. The court said: " ... While it is true that the tax on intangibles is levied and collected in the manner stated, it does not follow that all of its should be classed as a State tax. The statute refers in several instances to the different shares, such as the State's share, the county's share, and so forth; and in section 11 (e) we find the following characterization: 'The tax levied in section 3 hereof (which is the tax here in question) shall be deemed to be levied by the participating taxing authorities in the proportion that the millage rate of each participating taxing authority bears to the aggregate millage rate of all the participating taxing authorities.' (Italics court's). Ga. L. Ex. Sess. 1937, 1938; Ga. Code Ann., 1939 Cumulative Part, Sec. 92-151. So in providing for this tax the legislature at the same time effectually classified it, and by that classification only the State's share can be considered as a State tax." (emphasis supplied). The Intangible Tax Act was enacted by the General Assembly under and by virtue of Article VII, Section I, Paragraph III of the Constitution of 1945 as shown in Section 2-5403 of the Code: "All taxes shall be levied and collected under general laws and for public purposes only. All taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. Classes of subjects for taxation of property shall consist of tangible personal property including money. The General Assembly shall have the power to classify property including money for taxation, and to adopt different rates and different methods for different classes of such property." (emphasis supplied). It will be noted that this provision of the Constitution gave to the General Assembly the right to classify property for taxation and to adopt different rates and different methods for different classes of property. Under this provision of the Constitution the legislature enacted the Intangible Tax Act, adopting different rates for different classes of intangible property, and adopted a different method in the levy and collection of the taxes so imposed. Under the Intangible Tax Act the method adopted for the levy and collection of this tax was entirely different from the method adopted for the collection of ad valorem taxes on real estate. The Intangible Tax Act provided for the filing of intangible tax returns with the Commissioner of Revenue and gave the Commissioner of Revenue the right to make assessments on the returns so filed and to provide 191 for penalties in failing to make returns. After the tax due has been determined, the Commissioner of Revenue certifies the assessment fixed to the various county tax commissioners or tax receivers with regard to the situs of such property and such county tax commissioners or tax receivers record the value certified by the Commissioner and make assessments of all property certified, entering the same upon the property tax digest of the county of the residence of the taxpayer. The function of the State Revenue Commissioner is in effect to perform duties which would otherwise be performed by county tax assessors and .county tax receivers. The Revenue Commissioner, in the matter of assessing public utilities for taxation, performs a similar function to aid the county taxing authorities. Prior to the Constitutional Amendment in question, the counties, municipalities and school districts received most of the intangible tax levied, the State receiving only a small portion of the taxes. Under the adopted amendment, the State will receive a very small portion of the intangible tax whereas counties, municipalities and school districts will receive more. As an illustration of the division of taxes received from the Intangible Tax Act during a year in which the State's proportion or pro rata share was based on a five (5) mill levy as it compares to a year in which the state's proportion of pro rata share will be based on a one-fourth ( 14) mill levy, I wish to cite the following example of an individual taxpayer who, for the purposes of this example, lives in the City of Augusta, Richmond County, Georgia and who reports on his intangible tax return as follows: Value $ 27,897.11 4,000.00 212,375.00 43,218.00 Money Accts. Rec. Stocks Bonds and Debentures Rate @ 10c @ $3.00 @ $1.00 @ $3.00 Tax $ 2.79 12.00 212.38 129.65 $356.82 During the first comparative year I will assume the State's levy to be five (5) mills, the county levy to be thirteen (13) mills, the city levy to be twenty-seven (27) mills, and the school levy to be twenty-two and one-half (22lh) mills. During the next comparative year I assume all levies to remain the same with exception of the State's levy which will be reduced to one-fourth ( 14) mill. The following table will illustrate the division of taxes under the Intangible Tax Act: First Year State @ 5 mills County @ 13 mills City @ 27 mills School @ 22% mills $ 26.43 68.71 142.72 118.94 Second Year @ 1,4 mill $ 1.42 @ 13 mills 73.92 @ 27 mills 153.55 @ 22lh mills 127.93 $356.82 $356.82 This table clearly indicates that the State's portion of the tax, that is that tax that can be denominated a state tax under the formula prescribed by statute for the distribution of intangible taxes, is well under the Constitutional limitation of one-fourth ( ~) mill for in the second comparative year the State would receive from this individual taxpayer $1.42 from a total value of $287,490.11. One-fourth ( 14) mill applied to this valuation would produce $71.87. Therefore, the State is receiving 2/100ths of the Constitutional limitation. 192 It should be pointed out, and I think this example makes it clear, that the taxpayer will not pay less tax on the classified intangibles; rather the division of the tax receipts will be altered and the local political subdivisions will receive a larger share. PUBLIC REVENUE-Ad Valorem Taxes-Lowering of State Ad Valorem Rate (Unofficial) The lowering of the state ad valorem tax has not affected the authority of the counties to levy ad valorem taxes for county purposes. May 27, 1952 Honorable L. J. Courson Code.Section 2-5701 of the Annotated Code of Georgia of 1933, prescribes the purposes for which counties may tax. Code Section 92-3701 contains the same provisions as the section above quoted. All persons in charge of the fiscal affairs of the various counties of the State of Georgia have the right and power to levy taxes for all purposes as set out in the above quoted code section and the lowering of the state ad valorem tax will not affect this authority. The only consideration that should be given to the one-quarter of a mill levied for state purposes is that it should be included as a part of the whole levy for all purposes. PUBLIC REVENUE-Ad Valorem Taxes-Refund of Taxes (Unofficial) Where taxes are paid by error, the better practice is for the county to make the refund and reflect this fact upon the digest furnished to the state. Mr. Frank N. Browder November 24, 1952 You state that you have erroneously paid state and county taxes on certain property in Dougherty County, Georgia, which property was not in fact owned by the J. W. Browder estate that you manage. Assuming the facts in your letter to be correct, it is a matter calling for adjustment and refund at the county level. I feel sure that if you will present the entire matter to the Honorable Maurice Tift, Chairman of the Board of County Commissioners of Dougherty County, 310 Tift Avenue, Albany, Georgia, he will see to it that the matter is properly handled. In the event the county will not refund these taxes already paid, the State, upon proper claim made, will refund you the amount of state taxes included in the total. The better practice is, however, for the county to make the refund and have the appropriate tax authority show this credit on the digest furnished to the state. 193 PUBLIC REVENUE-Ad Valorem Tax Returns to Commissioner The Bibb Transit Company, under the facts stated, is a street railroad and as such should make its tax returns to the State Revenue Commissioner. Hon. W. Harvey Atkinson February 1, 1952 Director, Property and License Tax Unit FACTS: The 'predecessor of the Bibb Transit Company was under the jurisdiction of the Public Service Commission as a street railroad operating under its fran- chises in the City of Macon. On October 3, 1950, in an opinion by me, it was concluded that the Bibb Transit Company as a street railroad was subject to the jurisdiction of the Public Service Commission. On October 18, 1950, pursuant to an application by the Bibb Transit Company, the Georgia Public Service Com- mission ordered a rate increase to the Bibb Transit Company. (See Georgia Public Service Commission File No. 19526, Docket No. 37-U). Prior to that on June 15, 1949, the Georgia Public Service Commission, upon application of the Bibb Transit Company, authorized that Company to issue certain securities. (See Georgia Public Service Commission File No. 19526, non-docket). The fact that the Bibb Transit Company made the applications above referred to to the Georgia Public Service Commission is indicative of the view that the officials of the Company considered themselves a street railroad, and acceptance of the applications and subsequent orders based thereon by the Com- mission evidences its conclusion that the Company is a street railroad. QUESTION: Should the Bibb Transit Company return its property for tax purposes locally, or should it return its property to the State Revenue Commissioner? CONCLUSION: In view of the foregoing facts, I am constrained to rule that the Bibb Transit Company should make its returns for taxation to the State Revenue Commis- sioner. Irrespective of any views which may have been expressed by me prior to the action before the Public Service Commission, it now seems clear that the Bibb Transit Company and the Georgia Public Service Commission have reached the conclusion that the Company is a street railroad. Code Section 92-5902 requires, among other things, all street railroads to make annual tax returns of their property to the Comptroller General (now the State Revenue Commissioner). It would be incongruous to hold the Bibb Transit Company to be a street railroad for regulatory purposes and to hold that it would be something else for other purposes. PUBLIC REVENUE-Ad Valorem Taxes-Motor Vehicles (Unofficial) 1. A serviceman who is a resident of Georgia is liable for state ad valorem taxes upon a vehicle owned by him, notwithstanding the fact that said serviceman was stationed outside of this state during the taxable year. 2. Automobiles are not included in the $300.00 personal property homestead exemption. October 30, 1952 You state that N. H. Moulton, a resident of Macon, Bibb County, Georgia, and presently a member of the armed forces on duty in Delaware, had returned for him for ad valorem tax purposes by N. S. Moulton a certain automobile. It is further stated that during the taxable year of 1951 this automobile was 194 on the Island of Guam where N. H. Moulton was at that time stationed, and during the year 1952 the car was transported by him from Guam to Delaware, where he is now stationed. State and county taxes for the year 1951 and 1952 were imposed and you ask whether this procedure was correct. The Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. App., Sec. 574, concerns residence of servicemen for tax purposes, and, in effect, this section provides that members of the military service shall not be deemed to have lost their residence or domicile in a state solely by being absent in compliance with military orders. The section further provides that if a member of the armed forces is stationed in another state away from his domicile that his personal property is not deemed to have a taxable situs in the state in which he has lived pursuant to military orders. Under this section, if such a serviceman purchases a license plate and pays personal property taxes on his automobile in the state of his residence, the state in which he is stationed cannot require him to purchase a license plate in that state nor can it require him to pay personal property taxes on the automobile. It seems clear that the Congressional intent was not to exempt servicemen from the payment of personal property taxes but to protect them from being taxed by more than one state. It is my view that Georgia has jurisdiction for purposes of taxation of such a serviceman and can require that he pay his personal property tax on such an automobile, irrespective of the fact that the automobile was never within the confines of the State of Georgia during the taxable years in question. As to the question of homestead exemption, Section 92-239 of the Georgia Code, Annotated provides: "All personal clothing, household and kitchen furniture, personal property used and included within the home, domestic animals and tools, and implements of trade of manual laborers, but not including motor vehicles, are exempted from all State, county, municipal and school district ad valorem taxes, in an amount not to exceed $300 in actual value." Therefore, it is clear that motor vehicles are not included in the homestead exemption allowed in the case of personal property. PUBLIC REVENUE-Ad Valorem Taxes-Taxable Situs (Unofficial) Personal property connected with the business conducted by the owner in a county other than his residence is taxable in the county where the businss is located. Miss Alma Liles April 11, 1952 In response to your request regarding the situs of automotive equipment of Timber Lands, Inc., I would first like to state that the facts you have supplied are not sufficient to say positively that it is taxable in Camden County. The Tax Collector of Glynn County is correct when he states that the basic tax situs of personal property is the domicile of the owner. However, there is one exception to this fundamental principle. Personal property which is connected with a business conducted by the owner in another county is taxable in the county where that business is located. See High Shoals Mfg. Co. v. Penick, 127 Ga. 504, and O'Neal v. Whitley, 177 Ga. 491. 195 PUBLIC REVENUE-Ad Valorem Tax-Intangible Tax-Situs (Unofficial) The Georgia Intangible Tax law is based upon the situs of the property instead of the residence of the holder. February 5, 1952 Mr. Henry C. Martin You state that intangible taxes have been assessed against you in the State of Georgia, and also assessed against you in Florida. ihe intangible tax of Georgia is an ad valorem tax and the taxability is based upon the situs of the property instead of the residence of the holder of intangibles, and for this reason the intangibles described in your letter are subject to the Georgia intangible ad valorem tax. However, I am of the opinion that the State of Florida will not tax you on these intangibles' if this matter is properly brought to their attention. PUBLIC REVENUE-Ad Valorem Taxes-Soil Conservation Districts (Unofficial) 1. Any property acquired in the name of the state by any soil conservation district is exempt from all state, county and any other taxation. 2. Said soil conservation districts are not exempt from license fees imposed for regulatory purposes such as motor vehicle license plates. Mr. J. C. Tillman November 12, 1952 You request an opmwn concerning state and county licenses and taxes on certain equipment which it was contemplated would be transferred from the United States Government through the Soil Conservation Service to the Piedmont Soil Conservation District. The facts indicate that an agreement between the United States Government and the Piedmont Soil Conservation District has been entered into whereby the United States Government has made annual appropriations for personnel, equip- ment and materials and the Piedmont Soil Conservation District has utilized such personnel, equipment and materials in carrying on certain agreed policies and procedures of operation in the land use program. It is stated that the current status of this joint operation between the United States Government and the Piedmont Soil Conservation District is that the United States Government owns approximately 70% of the items of equipment now used and the Piedmont Soil Conservation District owns approximately 30% of the items of equipment now used. You have stated that under a recent policy established by the United States Government, it is now possible for the Piedmont Soil Conservation District to acquire title to all United States Government-owned equipment now in use in carrying out the agreement by an outright grant as an amendment to the now existing lease agreement. The equipment to be granted includes automotive .lquipment, tractor, harvesting and tillage implements. The question presented is whether or not equipment so acquired and owned by the Piedmont Soil Conserva- tion Department will be subject to State and county licenses and taxes at present and in the future with particular reference to automotive vehicles. In Georgia Code Annotated, Section 5-1801 (1951 Cumulative Pocket Part) is found what is known as "Soil Conservation Districts Law." Georgia Code Annotated, Section 5-1806 provides: "'District' or 'soil conservation district' means an agency of this State 196 organized in accordance with the provisions of Part VIII of Title 5, for the purposes, with the powers, and subject to the restrictions hereinafter set forth." Georgia Code Annotated, Section 5-2024 provides for certain tax exemptions and reads as follows: "No provisions with respect to the acquisition, operation, or disposition of property by public bodies of this State shall be applicable to a district organized hereunder unless the legislature shall specifically so state. The property and property rights off every kind and nature acquired in the name of the State of Georgia by any district organized under the provisions of Part VIII of Title 5 shall be exempt from State, county, and other taxation." It seems clear that under the statute all property acquired in the name of the State of Georgia by any Soil 'Conservation District shall be exempt from State, county and other taxation. You will note that no exemption is authorized for licenses and the Supreme Court of this State in Burkett v. The State, 198 Ga. 747, 750 has determined that the Georgia .Motor Vehicle Registration Law is a license and not a revenue-raising measure in the following language: "We conclude that the registration fee provided for in the Motor Vehicle Registration Law is nothing more than a license fee and that the Act is not in essence a revenue-raising measure, and that therefore the imposition of the registration fee did not amount to the levying of a tax against public property." Georgia Code Annotated Section 92-2902 (16) provides: "The annual fees for the licensing of the operation of vehicles shall be as follows for each vehicle registered: . . . "(16) For each motor vehicle owned by the State, any municipality, or other political subdivision of the State, used exclusively for governmental functions, the sum of $3." It will be seen that the State of Georgia imposes a license fee on each motor vehicle owned by the State and motor vehicles acquired by the Piedmont Soil Conservation District from the Unitd States Government would be subject the same as other State-owned motor vehicles for the annual license fee. The opinions expressed herein are based on the present Georgia laws and no attempt will be made to predict the future tax and license liability of State-owned property. PUBLIC REVENUE-Amateur Radio (Unofficial) There are no state laws governing the use and operation of mobile telephone units. August 27, 1952 Hon. John Huntoon This will acknowledge receipt of your letter of recent date requesting information concerning Georgia laws affecting the use and operation of mobile radio telephone units. In reply I must state to you that I am unaware of any general state law regulating the use of such facilities. However, I will call to your attention an act of the 1951 General Assembly (Georgia Laws 1951, p. 653) which provides for special automobile license tags for amateur radio station operators. Pertinent provisions of this act read as follows. "68-214.1 Amateur radio station operators; special automobile license tags.Owners of motor vehicles who are residents of the State of Georgia, and who hold an unrevoked and unexpired official amateur radio station license issued 197 by the Federal Communications Commission, upon application, accompanied by proof of ownership of such amateur radio station license, complying with the State motor vehicle laws relating to registration and licensing of motor vehicles, and upon the payment of the regular license fee for tags, as prescribed under sections 68-214 and 68-215, and the payment of an additional fee as set by the State Revenue Commissioner, shall be issued a license plate, as prescribed in sections 68-214 and 68-215, for private passenger cars upon which, in lieu of the numbers as prescribed by said sections 68-214 and 68-215; shall ~be inscribed the official amateur radio call letters of such applicant as assigne'a by the Federal Communications Commission. The State Revenue Commissioner shall, on or before the first day of March in each year, furnish to the sheriff of each county in the State of Georgia an alphabetical arrangement of the list of names, addresses and license tag letters of each person to whom a license tag is issued under the provisions of this section, and it shall be the duty of the sheriffs of the State to maintain and to keep current such lists for public information and inquiry. The State Revenue Commissioner shall make such rules and regulations as necessary to ascertain compliance with all State license laws relating to the use and operation of a private passenger car before issuing these tags in lieu of the regular Georgia license plate, and all applications for such tags shall be made to the State Revenue Commission. Such tags shall be nontransferable. No person under the provisions of this section shall receive compensation in any form for his services in making amateur radio communication available to the public, individual, firms, corporations and organizations. This section is supplementive to the motor vehicle licensing laws of Georgia and nothing herein shall be construed as abridging or amending such laws." PUBLIC REVENUE-Cigarette Permits Under the amendment to the act referred to below, a cigarette permit need only be procured one time at a cost of $35.00, and said permit is not required to be renewed every year. July 18, 1952 Honorable J. B. Rhodes, Director Cigar and Cigarette Tax Unit This will acknowledge receipt of your request regarding the liability of permit holders under Section 92-2265 of the 1933 Code of Georgia, Annotated, 1951 Pocket Part Supplement, for payment of an annual permit fee. It is my opinion that this fee of $35.00 is to be collected only before each new permit is issued. On March 30, 1937, an act was approved relating to the licensing of the cigar and cigarette business and the taxation of those products. That act appears in Georgia Laws, 1937, page 83 and pages following. Section 17 of said act on page 103 of Georgia Laws, 1937, after describing what is to be licensed, provides as follows: "The Commissioner of Revenue shall before issuing said permit charge and collect an annual permit fee in the amount of $25.00." (emphasis supplied.) On December 31, 1937, an act was approved amending the act approved March 30, 1937. The amending act at Section 5, Georgia Laws, 1937-1938, Extra Session, at page 140, struck Section 17 of the former act in its entirety and substituted "in lieu thereof a new section to be known as Section 17." The new 198 Section 17, although generally concerned with the same licensing provisions, contains much more detail. Similarly to the old Section 17, after requiring that a permit be obtained, this provision follows: "Said Commission shall, before issuing said permit charge and collect a fee of thirty-five ($35) dollars." Neither Section 17 of the act of March 30, 1937, nor Section 5 of the amending act of December 31, 1937, contains any provisions for annual application for the permit or for any expiration date. Both of said sections provide for revocation of permits and for the issuance of new permits. Therefore, it appears from the wording of Section 17 as contained in Section 5 of the act approved December 31, 1937, that the permit therein required would be valid until revoked and that the $35.00 fee would be chargeable only before the issuance of each new permit. PUBLIC REVENUE-Corporation Franchise Tax-Statute of Limitations The statute of limitations on corporation excise taxes is 7 years from the date that execution thereon issued, or could have been issued; if returns were not made, the state has no way of knowing that the taxes were due, and for this reason the statute of limitations does not commence running. Honorable W. Harvey Atkinson Director, Property Tax Division August 5, 1952 You request a ruling on the application of the statute of limitations to domestic corporation franchise taxes. Section 92-7701 of the Code of Georgia of 1933 provides as follows: "All State, county, city, or other tax executions, before or after legal transfer and record shall be enforced within seven years from the date of their issue; or within seven years from the time of the last entry upon the tax execution by the officer authorized to execute and return the same, if said entry is properly entered by said officer upon the execution docket and books in which said entries are required to be made in cases of entries on executions issued on judgments." Section 92-7702 of the Code of Georgia of 1933 provides that all laws in reference to a period of limitation as to ordinary executions are applicable to tax executions, and Section 110-1002 provides that a dormant judgment may be revived within three years by scire facias. Section 92-131 of the Annotated Code of Georgia of 1933, Pocket Part Supplement, provides as follows: "The stock of corporations organized under the laws of this State are also exempt from said tax if such corporation pays all taxes in Georgia as now provided for by law; Provided, this exemption shall in no event be construed to apply to shares of banks or banking associations (or moneyed capital in the hands of individual citizens of Georgia in competition with national banks), nor shall it be deemed to modify, amend, or repeal the provisions of the property tax (including the franchise tax as applied to utility corporations) on property owned by a corporation organized under the laws of Georgia or the capital stock (license) tax applying to corporations organized under the laws of Georgia." Section 92-131 is not in conflict with nor repugnant to Section 92-7701 and if executions have been issued against the Macon Baseball Company and if they are seven years old or seven years have elapsed since the last entry on the execu- 199 tion, they are now dormant and if the three-year period allowed to revive dormant judgments has expired then the statute of limitations has run against these executions and the Department of Revenue of the State of Georgia can not enforce them. If tax executions have not been issued and returns have not been made, then the statute of limitations does not run and the State of Georgia can enforce the claims. In the case of Suttles v. Dickey, 192 Ga. 382, Mr. Chief Justice Reid speaking for the Court said: "Construing the provisions of the Code, 92-7701, 92-7702, 110-1001, in the light of former interpretations made in Georgia Railroad & Banking Co. v. Wright, 124 Ga. 596 (53 S. E. 251), Darby v. DeLoach, 190 Ga. 499, and Reynolds v. Hardin, 187 Ga. 40 (200 S. E. 119), claims for taxes should be enforced within seven years from the date when they are due and when executions could have been issued therefor__, .. " (emphasis supplied.) It was the position of the State of Georgia in the case of Georgia v. Home Stores, Inc., in the Superior Court of Fayette County (settled upon receipt of all sums claimed), that the statute of limitations does not run when returns have not been made since the state does not know and has no way of knowing that taxes are due or might be due and, therefore, this lack of information prevents the state from issuing executions. My position has not changed since the . institution of that suit. PUBLIC REVENUE--Corporation Income Taxes-Hoffman Machinery Corporation Claim The points of contention involved in the U. S. Hoffman Machinery Corporation case, pending in Fulton Superior Court and disposed of by agreement, are discussed. January 18, 1952 Honorable Charles D. Redwine Commissioner of Revenue Re: U. S. Hoffman Machinery Corporation vs. Charles D. Redwine, Fulton ton Superior Court, Number A3633. Dear Mr. Redwine: The captioned suit was filed December 2, 1947. The plaintiff company sought a refund for income ta:xes claimed to have been illegally and erroneously assessed and collected for the year 1940, 1941 and 1942. Points of contention raised by this suit are four in number. They are: (1) A claimed erroneous inclusion of royalties paid by a manufacturer located in England. (2) A claimed erroneous inclusion of salaries and wages paid to employees who rendered services outside of the State of Georgia. (3) A claimed erroneous inclusion of sales in Georgia from inventories located outside of Georgia. (4) A claimed erroneous inclusion of sales to persons outside of Georgia from inventories located outside of Georgia. Since there existed grave doubts as to the State's legal position on some of these claimed errors, especially in view of the Dan River Mills decision, a conference was held by Mr. Charles Haggerty of your Department, Mr. M. H. Peabody, representing the taxpayer and Mr. George E. Sims, Jr., of my staff, with the view in mind of securing a. settlement which would in no way prejudice 200 the claim or right of the state, but which would secure as much as I feel could be legally enforced by the state. On the issues above listed the following determinations were made: (1) I take the position that since this is a unitary business it is proper to include the royalty income in the apportionment formula. To this view the taxpayer has acceded. (2) The salaries and wages paid to employees who rendered services in Alabama, Arkansas, Louisiana, Florida, North Carolina, South Carolina, Ten- nessee and Mississippi were erroneously included in the apportionment formula and there is no doubt whatsoever but that under our statutes the state's position is clearly in error and these sums should be. deleted from the apportionment formula. (3) In reference to the claimed erroneous inclusion of sales to Georgia customers from inventories located outside Georgia, I take the position that these sales were correctly included in the apportionment formula. This situation is distinguishable from the Dan River Mills decision. My position is further strengthened by the case of Twentieth Century Fox vs. Phillips, 76 Ga. Apps. 825. The taxpayer has agreed with my position. (4) In reference to the claimed erroneous inclusion of sales to persons out- side of Georgia from inventories located outside of Georgia, it is my considered opinion that in view of the Supreme Court's decision in the Dan River Mills case and the apparent failure of the Supreme Court to be able to distinguish between the theory of ad valorem taxation and income taxation the state would indeed be in an extremely doubtful position before that Court as presently constituted. Irrespective of this existing condition however, the point is too doubtful to risk when we have secured such an excellent agreement on other points. These adjustments will require refunds in the following sums: Year 1940 1941 Principal $ 214.13 2,231.18 Interest $ 87.78 914.78 Total $ 301.91 3,145.96 1942 658.94 $3,104.25 290.68 $1,293.24 949.62 $4,397.49 My opinion in this matter and my reasons for so deciding are being fur- nished pursuant to the requirements of Section 92-8411 of the Code of Georgia of 1933, Annotated Supplement. PUBLIC REVENUE-Corporation Taxes Treasury stock held by a corporation should not be deducted from the total of capital and earned surplus for purposes of the domestic corporation franchise tax, unless such stock has been retired. Honorable W. Harvey Atkinson Director, Property & License Tax Unit September 24, 1952 You state that a domestic corporation in its report to you indicated capital and earned surplus of $308,157.51 but that this total includes treasury stock which the company redeemed from one of its officers and stockholders. You ask whether or not the treasury stock redeemed should be deducted from the total of capital and earned surplus for purposes of domestic corporation franchise tax. It is agreed that if the treasury stock is a deductible item the tax will 201 be $200.00 and if it is not, the tax will be $250.00. The company contends that the treasury stock redeemed should be con- sidered a reduction in the net worth of the corporation and states "it is generally agreed among accountants and granters of credit that treasury stock is a reduction of capital and surplus and has no place among assets." The company cites "The Accountants Handbook, page 1008 as authority for their position. In Ruffner v. Sophie Mae Candy Corporation, 35 Ga. App. 114, the Court said: "A corporation does not reduce its capital stock by purchasing shares thereof, where it does not retire them but sells and transfers them to others or holds them ready for such sale and transfer." (Emphasis supplied). In Borg. v. International Silver Company, 11 Fed. 2d, 143, the court said: "That where a corporation acquired some of its own stock without taking any steps to retire it under corporate law of New Jersey, the stock was not retired but was an asset of the corporation and could be sold." In Commissioner v. Batton, Barton, Drustine and Osborn, (C.C.H. 2, 1948), 171 Fed. 2d, 474, 476, the court said: "Treasury stock is an asset in a corporation's treasury and may be sold at any time as suits the corporation owner's purpose but retired stock ceases to exist as an evidence of interest for ownership in corporation property." In North High Realty Co. v. Evatt, 143 Ohio State 231; 153 A.L.R. 686, the Supreme Court of Ohio said: "Where a corporation acquires some of its own shares which are held as treasury shares, no part of the par value of such shares may be deducted from its 'capital' for the purpose of computing the corporation franchise tax." The Supreme Court of Taxas has held to the same effect. A. B. Frank Compan~ v. Lapham, Secretary of State, 193 S. W. 2d 671 (1946) and to the same effect is the Louisiana case of State v. Stewart Bros. Cotton Company, 190 Sou. 317 (1939). The following language is to be found in 51 Am. Jur. "Taxation," Section 824: "For the purpose of determining the base upon which to compute a corporate franchise tax, consideration must be given to the applicable statutes, rather than to accounting practices not based upon such statutes." Therefore, it is my opinion that the position taken by this company is without merit and the item "treasury stock" is not a deductible item for the purpose of the corporate franchise tax. PUBLIC REVENUE-Estate Tax-Non-residents Intangible personal property accruing from a partnership doing business in this state is subject to payment of the estate tax, although owned by a non-resident decedent. October 16, 1952 Honorable W. Harvey Atkinson Director, Property and License Tax Unit Reference is made to your letter requesting an opm10n from this office as to whether or not intangible personal property accruing from a partnership doing business in this state constitutes property for estate tax purposes of a nonresident decedent. Georgia Code Annotated, Section 92-3401.1 (1951) Cumulative Pocket Supplement) reads as follows: 202 "It shall be the duty of the legal representative of the estate of any person who may die a non-resident of this State but who owns or controls property located within this State, and whose estate is subject to the payment of a Federal estate tax, to file with the State Revenue Commissioner a duplicate of the return which he is required to make to the Federal authorities and pay a tax thereon as determined by section 92-3401. The amount of the tax to be paid shall be in proportion to the amount of property located in this State as compared to the total amount of property located elsewhere." Georgia Code Annotated, Section 92-101 provides: "All real and personal property, whether owned by individuals or corporations, resident or non-resident, shall be liable to taxation, except as otherwise provided by law. Georgia Code Annotated, Section 92-102 provides in part: "For the purpose of taxation, 'personal property' shall be construed to include goods, chattels, moneys, credits and effects, whatsoever they may be: ..." Generally, intangible personal property is taxable in the state where the owner resides. However, there is an exception to this rule which has been recognized in this state for many years. It has been firmly established by our courts that intangible personal property owned by a non-resident and held at the domicile outside of this state is taxable in this state if it accrues out of or as an incident to property owned or a business conducted by the nonresident or his agent in this state. Armour Packing Co. vs. Augusta, 118 Ga. 552; Davis v. Penn Mutual Life Ins. Co., 198 Ga. 550; Northwestern Mutual Life Ins. Co. vs. Suttles, 201 Ga. 84; Suttles v. Owens-Illinois Glass Co., 206 Ga. 849. The United States Supreme Court in State Tax Commissioner of Utah v. Aldrich, 316 U. S. 174 (62 S. Ct. 1008) held that there is no constitutional rule of immunity from taxation of intangibles by more than one state. The court also held that jurisdiction to tax is not restricted to the domiciliary state but another state which has extended benefits or protection or which can demonstrate the practical fact of its power of sovereignty as respects the issues may likewise constitutionally make its exaction. In conclusion let me state that it is the opinion of this office that the State of Georgia may impose estate taxes on intangible property accruing from a partnership located and doing business in the State of Georgia even though the partner was a non-resident of this state at the date of his death. PUBLIC REVENUE-Estate Tax-Non-residents Shares in Georgia Corporation Shares of stock in a Georgia corporation owned by a non-resident alien decedent are not subject to the estate tax of this state. January 10, 1952 Honorable W. Harvey Atkinson Director, Property and License Tax Unit An opinion written by me on October 7, 1949, has recently been called to my attention for further consideration. 203 After further study into the question which was raised in that opm10n regarding the estate taxability of shares of stock in the estate of a non-resident alien decedent, which were shares of stock of a Georgia corporation, under Section 92-3401 and Section 92-3401.1 of the 1933 Code of Georgia, it is my opinion that these two Code sections are not broad enough to include that stock within its meaning. Therefore this opinion is to advise you that such stock cannot lawfully be taxed under the code sections in question as they now exist. PUBLIC REVENUE--Erroneous sales under Tax fi. fas. A conditional sales contract of personalty need only be recorded in the county of the residence of the vendee (the taxpayer), and therefore where a sale was made under tax fi. fa. of property in the hands of the taxpayer in a county other than the county of his residence, such sale was ineffective and passed no title. August 1, 1952 Honorable Charles D. Redwine State Revenue Commissioner In answer to your question as to what dispositions should be made of property subject to a retention title contract recorded in the county of the residence of the taxpayer, employed in the business of the taxpayer in another county where it was levied upon and sold by a properly authorized agent of the Revenue Department under a tax fi. fa., I cite you the pertinent statutory provisions which will answer your problem. Sction 67-1403 of the 1933 Code of Georgia Annotated is as follows: "The registration and record of conditional bills of sale shall be governed in all respects by the laws relating to the registration of mortgages on personal property, except that they must be recorded within 30 days from their date." Section 67-1403 of the 1933 Code of Georgia Annotated is as follows: "Mortgages on realty shall be recorded in the county where the land lies; on personality, in the county where the mortgagor resided at the time of its execution, if a resident of this State, and if a nonresident, in the county where the mortgaged property is. If a mortgage shall be executed on personalty not within the limits of this State, and such property shall afterwards be brought within the State, the mortgage shall be recorded according to the above rules within six months after such property is so brought in. All chattel mortgages of stocks of goods, wares, and merchandise, or other personal property, shall be recorded, in case the same is upon property or. goods located in some other county than that of the mortgagor's residence, in the county where said personal property is located at the time of the execution of said mortgage, in addition to the record of said mortgage in the county of the mortgagor's residence. Where a mortgage either upon realty or personalty is executed to secure the payment of money or other thing of value, and the same is not recorded as provided by law, but such mortgage is renewed or reexecuted, .in every case of renewal or reexecution of a mortgage which has not been recorded, such mortgage shall operate as a lien upon the property of the mortgagor. only as against the mortgagor himself and those having actual notice of such mortgage, except from the date of the record of such mortgage." Section 39-1303 of the 1933 Code of Georgia Annotated is as follows. "A sale regularly made by virtue of judicial process issuing from a court 204 of competent jurisdiction, shall convey the title as effectually as if the sale were made by the person against whom the process shall have issued." Section 92-8107 of the 1933 Code of Georgia Annotated is as follows: "The deed or bill of sale made by the sheriff to the purchaser at tax sale shall be just as valid as if made under an ordinary execution issuing from the superior court." Section 39-1307 of the 1933 Code of Georgia Annotated is as follows: "The purchaser shall look for himself as to the title and soundness of all property sold under judicial process. Actual fraud or misrepresentation by the officer or his agent may bind him personally. No covenant of warranty shall bind him individually, unless made with that intention and for a valuable consideration." "Section 39-1308 of the 1933 Code of Georgia Annotated is as follows: "The purchaser at judicial sales may enforce any covenants of warranty running with the land which may be incorporated in the previous title deeds." It appears from the foregoing that the levy could not convey good title since the defendant taxpayer did not have title. As for the holder of the conditional title, he has a right to repossess the property upon failure of the taxpayer purchaser to meet the terms of the contract. This right extends to and against the purchaser of that property at a tax sale if the provisions of Section 39-201 of the 1933 Code of Georgia Annotated have not been followed. Those provisions are as follows: "Where any person other than the vendor, or other than the holder or assigne of the purchase money or secured debt, shall have any judgment against a defendant in fi. fa. who does not hold legal title to property but has an interest or equity therein, such plaintiff in fi. fa. may take up the debt necessary to be paid by the defendant in order to give such defendant legal title to the property, by paying such debt with interest to date if due, and interest to maturity if not due; and thereupon a conveyance to the defendant in fi. fa., or, if he be dead, to his executor or administrator, shall be made by the vendor or holder of title given to secure the debt, or, if dead, by the excutor or administrator thereof; and when such conveyance shall have been filed and recorded, the said property may be levied on and sold as property of the defendant. The proceeds shall be applied, first, to the payment of liens superior to the claims taken up by the plaintiff in fi. fa.; next, to the payment of principal advanced by said plaintiff in fi. fa. to put title in defendant, with interest to date of sale; and the balance to the execution under which said property shall be sold, and to other liens according to priority, to be determined as in other cases of money rules." The sale, therefore, being a sale of property belonging to the vendor title holder for the purpose of satisfying a tax obligation to the state, must be declared null and void and of no legal consequence between the parties involved. The money received from the purchaser at the cax sale should be refunded to him. Section 39-1316 of the 1933 Code of Georgia Annotated provides as follows: "Courts shall have full power over their officers making execution sales; and whenever satisfied that a sale made under process is infected with fraud, irregularity, or error to the injury of either party, the sale shall be set aside." 205 PUBLIC REVENUE-Tax fi. fas.-Non-residents In order to enforce a tax fi. fa. against a non-resident having no property within this state, a judgment must first be procured in the state wherein the delinquent taxpayer resides. Honorable William ,M. Lester April 1, 1952 Deputy Commissioner of Revenue You ask the procedure to follow in collecting income tax fi. fas. against defendants that have moved or are now residing beyond the limits of the State of Georgia. In order to enforce judgments against defendants residing beyond the limits of the State of Georgia in other States, it will be necessary to first have such judgments domesticated in accordance with the laws of the state wherein the defendant resides. The procedure to follow in such cases, of course, would have to be provided for by an administrative rule promulgated by the Department of Revenue. PUBLIC REVENUE-Court Sales-Liens A tax collector cannot legally levy a tax execution against property sold at a receivership sale pursuant to court order, but said collector is relegated to enforcing his claim against the proceeds of said sale. October 16, 1952 Honorable W. Harvey Atkinson Director, Property and License Tax Unit I have carefully studied the pleadings and the court orders passed in the case of Yancey Brothers, et al. vs. Sylvania Veneer Company and I find: That on August 1, 1949, certain creditors of the Sylvania Veneer Company filed a petition in the Superior Court of Screven County, alleging the insolvency of the company and requesting that a receiver be appointed: That on August, 16, 1949, an order was passed appointing a receiver in said case; That the order of August 16, 1949 also provided that all of the property of the said company be sold for the benefit of the creditors and that the claims and liens of all persons, including tax liens and tax claims, be divested as to the property sold and be transferred and attached to the funds and proceeds from the sale by the receiver with all rights of priority as now exist; That on the 6th day of October, 1949, the court of its own motion passed a bar order; That on the first Tuesday in October, 1949, the property was advertised and sold free of liens; That on October 11, 1949 the court passed an order approving and confirming the sale to Mrs. Leila D. Hill, the purchaser at the receivership sale; That on the 20th day of July, 1950, the court passed an order of distribution, distributing the proceeds of the sale of said property. It appears that the tax collector of Screven County on December 7, 1949 filed an intervention setting out taxes due the state and county in the sum of $1,256.84 and this claim was before the court prior to the order of distribution. It is immaterial in determining the question before us whether or not the tax collector had filed his claim for taxes with the receiver. It was of course proper for the tax collector to file this claim for taxes with the receiver. The question in this case is-can the tax collector now levy the tax 206 execution on the property which was sold at the receivership sale? In my opinion the tax collector has no legal authority to levy the tax execution in question against the property sold and conveyed by the receiver. Prior to the Act of 1939, which is codified in Code Section 37-410 (1951) Cumulative Pocket Part), the sale by a receiver would not have divested the lien for taxes. However, this law was changed by the Act of 1939 which is codified in Code Section 37-410 (1951) Cumulative Pocket Part) and reads as follows: "In all equity cases now pending, or hereafter pending, in the superior courts of this State, wherein assets of either or both parties to the cause are being administered, marshaled or otherwise disposed of by the court, the court, upon motion of either party to the case, or, on its own motion at least 60 days before the trial term, shall pass an order to be entitled in the cause and addressed to all parties concerned, requiring all parties claiming an interest in said assets to intervene in the cause not later than a certain date, which is to be fixed by the court, of not less than 60 days from the date of the order and not more than 90 days from the date thereof, and after such order is so passed the same shall be published in the newspaper in the county, in which the case is pending and in which the sheriff's advertisements are published, twice a month for two consecutive months. After said order has been so passed and published, and after the expiration of the time for intervening, as fixed by the order, all parties interested in said assets shall be forever barred from intervening in the case." This law has been construed by the Supreme Court of our State in the case of Suttles, Tax Collector v. Withers Cigar Company, 194 Ga. 617. In this decision, 2nd headnote, the court held the following: "The provisions of the act of 1939, just referred to, are applicable to a tax-collector who seeks to intervene for the purpose of having a portion of the fund in court applied on executions for state and county taxes assessed against property the sale of which by the court's receiver produced the fund." This law was again construed by our Court of Appeals in the case of Jones, tax collector, v. Staton, 78 Ga. App. 890, in which the Court stated the following (headnote 2): "Where, as here, the tax collector did not intervene and file his claim on tax collections against the fund derived from the sale of a receiver under an order of the superior court, in compliance with the act of 1939 (Code, Ann. Supp., Sec. 37-410), which property was sold free of liens, the tax collector could not thereafter levy on the property thus sold at a receiver's sale to satisfy said collections. Under the facts of this case his only remedy was to seek the payment of the amount of his tax execution out of the funds in the hands of the receiver." You are requsted to advise the tax collector of Screven County of the opinion expressed herein. PUBLIC REVENUE-Executions-Sheriffs' Fees A sheriff making collection under one income tax fi. fa. and making a return of nulla bona under other tax fi. fas., is entitled to deduct his fees for all of said fi. fas. from the sum collected by him under one or more of said fi. fas. August 15, 1952 Honorable William M. Lester Deputy Commissioner of Revenue You state that you sent a number of income tax fi. fas. to a sheriff for levy. 207 He collected one of the income tax fi. fas. and made nulla bona returns on all the others. In remitting proceeds of the income tax fi. fas. collected, he retained a sufficient sum to cover his nulla bona fees on the others. You ask whether or not the sheriff is allowed to deduct from the collection of one income tax fi. fa. his cost on all income tax fi. fas. sent to him by you. Section 92-3306 of the Code of Georgia of 1933 provides that the State Revenue Commissioner shall issue execution for the collection of unpaid income taxes and that the sheriff shall within ten days after receipt of such execution proceed with levy. This section further provides that the sheriff shall be entitled to the same fees for his services in executing and collecting said execution as allowed by law for like services to be collected under any Superior Court execution. Section 24-301 of the Code of Georgia of 1933 is as follows: "None of the fees which clerks of the superior courts, sheriffs, deputy sheriffs, bailiffs, justices of the peace, or constables are entitled to charge and collect for the performance of their official duties shall be charged to the State for failure to collect out of the person charged, unless otherwise expressly declared, or in their nature must necessarily be so .Paid." I call your attention to the language of this last quoted Code Section in that the fees which shall not be charged against the state are fees which should have been collected "out of the person charged." I am of the opinion that the manner in which the sheriff handled this matter is acceptable. The fees must necessarily be paid by the state, but in the event that any future levy proves to be good then the nulla bona fee earlier paid becomes a cost of the proceeding and due the state. If, in your opinion, for bookkeeping or other reasons, it is more desirable that the sheriff remit all sums collected less his charges on the fi. fas. so collected and submit his bill for the nulla bona entries, then it is my opinion that that procedure also is acceptable. PUBLIC REVENUE-Homestead Exemption (Unofficial) The $2,000.00 homestead exemption from taxation does not apply as to taxes levied to pay the principal and interest of existing and future bonded indebtedness of the county. Honorable Joe Schreiber December 17, 1952 You propound the following question: Is property covered by the home- stead exemption subject to taxes levied to pay the principal and interest on existing and future bonded indebtedness of the county? The Constitution of 1945, Section 2-5404, which, among other things, pro- vides for the homestead exemption of $2,000 from all ad valorem taxes, makes the following exception to the exemption, "Except taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness." That portion of the exception which states, "except to pay interest on and retire bonded indebtedness," refers to existing and future bonded indebtedness. The word "bonded," as used in the quoted provision, is an adjective describing the particular indebtedness for which no exemption from taxation is granted. This law as well as all other laws applies as of the date of its enactment and on into the future until it is repealed or modified. . 208 PUBLIC REVENUE-Homestead Exemption (Unofficial) It is no longer necessary that a taxpayer seeking to claim a homestead exemption occupy 50% of the building as a dwelling. (overruling earlier opinions) Honorable C. E. Ozburn May 30, 1952 The homestead exemption law was amended by the 1952 Session of the General Assembly (Acts 1952, page 317), so that the definitions of the phrase "occupied primarily as a dwelling" were repealed and the following definition substituted therefor: "(1) Whenever used in this subsection the phrase 'occupied primarily as a dwelling' shall mean: (1) That the applicant or members of his family occupy the property as a home; or (2) the applicant or members of his family occupy a portion of the property as a home; provided, that not more than one exemption may be claimed in connection with the occupancy of one building except in the case of duplex or double occupancy dwellings when the line of division follows a natural and bona fide plan as to both land and building and the two units thus formed are separately owned and occupied." This language leaves no doubt but that it is not now necessary that 50% of the building be occupied as a "dwelling." The amendment also has the effect of reversing my unofficial opinion of October 17, 1950, to you in which I stated that partial occupation of a dwelling by an undertaking business or a doctor's office or a jewelry business disqualified the dwelling as a homestead. PUBLIC REVENUE-Homestead Exemption (Unofficial) The fact that a taxpayer fails to return his property for any given year and that the tax assessors fail to carry forward said property on the books, does not revoke an application for homestead exemption made after the act of 1952 so as to require a subsequent appplication for said homestead. October 20, 1952 Honorable S. M. Mathews You state that it is your view that "the owner of a homestead which actually is occupied by the owner shall not have to apply for the exemption but one time so long as the owner remains in continuous occupation and that the exemption will be automatically renewed from year to year so long as the owner continuously occupies such residence as a homestead, and that this is true regardless of whether or not the property is returned by the taxpayer or is carried forward by the tax assessors themselves from the preceding year or is otherwise assessed for taxes by the tax assessors." If a home was occupied on January 1, 1952 in conformity with the act approved February 15, 1952 (Georgia Law 1952 p. 317) and if a homestead exemption was claimed on or before April 1, 1952, then it is my view that the recent act of the Legislature, which provides that the owner of a homestead does not have to apply for the exemption but one time so long as he remains in continuous occupation of his residence, has a homestead after the claim is made for the year 1952. In other words, if a person entitled to a homestead exemption makes application for that exemption in 1952, he will not be required to make like applications hereafter as long as the residence continues to be occupied as a homestead. Also I am of the opinion that this is true regardless of whether or not the property is returned by the taxpayer or is carried forward by the tax 209 assessors themselves from the preceding year or is otherwise assessed for tax by the tax assessors. PUBLIC REVENUE-Homestead Exemption The homestead exemption does not apply to other buildings not actually occupied by the taxpayer, although the total amount of said buildings and the buildings so occupied by the taxpayer are not equal to the amount allowed the taxpayer as a homestead exemption. Mr. W. Harvey Atkinson Director, Property Tax Division December 19, 1952 You request an opinion on the questions presented in a communication of Mr.. W. Z. Camp to you, dated November 26, 1952. Mr. Camp's letter is as follows: "Will you please send me a ruling on the following cases in regard to Homestead Exemption under the new act passed November 15, 1952, Code No. 92-220, 92-233 Amended, No. 885 (House Bill No. 17) '? Tax Return shows: 231 Acres land-valuation Buildings-valuation $1155 250 House and Lot-valuation $1405 500 Owner's son lives in the house, rent free, and it is located on the 231 acres. The land is in one tract and covered by one deed. Would the owner be entitled to exemption on $1405 or on $1905 '? Owner also lives on the 231 acres. Tax Return shows: 27 Acres land-valuation Buildings-valuation $ 200 400 Storehouse-valuation House-valuation $ 600 125 300 $1025 Owner lives on the 27 acres and rents the house valued at $300. The land is in one tract and covered by one deed. would the owner be entitled to exemption on $600 or on $1025." In my opinion the applicant's right to the homestead would be limited to the property occupied by him as a residence even though its value was less than $2,000. In the first ~ase, the owner would be entitled to an exemption of $1405 and would not be entitled to an exemption on the house and lot occupied by his son. The fact that the father did not charge his son rent on the property would not bring it within the exemption. In the second case cited in Mr. Camp's letter, the applicant would only be entitled to the house and the land adjoining, owned and occupied by him as a residence. The exemption in that case would be $600. The Supreme Court. of the State in the case of Harper v. Davis, 197 Ga. 762, stated: "The applicant's right, however, was limited to property occupied by her as a residence, even though its value was less than $2000." 210 This was a case in which the applicant owned a lot on which at least one building, which was not occupied by the applicant as a residence, was claimed as a part of the homestead exemption. The court in this case limited the exemption to the building and lot occupied by the owner as a residence. Section 92-233(g) of the 1933 Annotated Code of Georgia (1952 Supplement) is as follows; "In the event a person who is the applicant owns two or more dwelling houses, he shall be allowed the exemption granted by this law on only one; and only one homestead shall be allowed to one immediate family group." PUBLIC REVENUE-Homestead Exemption (Unofficial) Under the act of the General Assembly of 1952, requiring that application for homestead exemption need be made only once, the legislative intention is that the application be made at least once after the passage of said act, which application could be made in 1952. June 18, 1952 Honorable John C. Bell You request my opinion as to whether the amendment to Section 92-220 of the Code, relating to Homstead Exemption, applies to the year 1952. Section 92-220, with the 1952 amendment added, reads as follows: "The person seeking said exemption shall, on or before April 1 of the year in which exemption from taxation is sought, file a written application and schedule with the county tax receiver or tax commissioner charged with the duty of receiving returns of property for taxation. The failure to so file said application and schedule as provided herein shall constitute a wavier upon the part of such person failing to make said application for exemption for said year, except that in counties of over 200,000 or more according to the 1940 or any future census, the time of filing written application and schedule for exemption shall be on or before May 1 of the year in which exemption from taxation is sought. "Provided that the owner of a homestead of each resident of Georgia which actually is occupied by the said owner as a residence and homestead shall not have to apply for the exemption but one time so long as such owner remains in continuous occupation of such residence as a homestead, but such exemption shall automatically be renewed from year to year so long as such owner continuously occupies such residence as a homestead." The proviso was added by the 1952 act which may be found in Georgia Laws 1952, p. 317. It is my belief that the General Assembly intended that application for exemption be made the first time after the passage of this particular act. This proviso was not in existence until this year and I am of the opinion that at least one application for exemption must be made before the exemption will be automatically renewed. This application may be made this year. PUBLIC REVENUE-Homestead Exemption (Unofficial) To be entitled to a homestead exemption for 1952 the taxpayer must have actually resided in the homestead on January 1, 1952, and must have made application for the exemption on or before April 1, 1952. August 25, 1952 Mr. W. E. Cartee You request information concerning homestead exemption. 211 Section 92-6202 of the Code of Georgia of 1933 provides: "The individual returns made by taxpayers to the tax receiver shall be for property held and subject to taxation on the first day of January, next preceding." In the case of Sims v. Kennedy, 184 Ga. 822, the Supreme Court said: "The day fixed for the return of property for taxation by individuals is January 1 of each year." If you occupied your home in Metter, Georgia, on January 1, 1952, in conformity with Georgia Laws, 1952, page 317, and if you claimed your homestead exemption on or before April 1st, then the claim should have been allowed. I take the view that the recent act of the Legislature which provides that the owner of a homestead does not have to apply for the exemption but one time so long as he remains in continuous occupation of his residence as a homestead has application after a claim is made for the year 1952. In other words, if a person entitled to homestead exemption makes application for that exemption in 1952, he will not be required to make like,applications hereafter as long as the residence continues to be occupied as a homestead. If you did not make application for homestead exemption before April 1, 1952, then you can not now do so regardless of the fact that you would have been entitled to such an exemption had it been made before that date. PUBLIC REVENUE-Homestead Exemption (Unofficial) A serviceman is entitled to a homestead exemption on property owned by him, notwithstanding the fact that said property is being rented to other persons; but in any event a timely application for the homestead exemption must be made. December 5, 1952 Mr. James C. Germany, Jr. 104 Ewing Drive Forest Park, Georgia Dear Mr. Germany: In your letter of November 28, 1952 you refer to my unofficial oprmon of October 24, 1952 to Mrs. W. W. DeLoach, Tax Commissioner of Bulloch County, in which I stated it was my opinion that under the 1952 Act of the General Assembly (Georgia Laws 1952, p. 265) it made no difference whether a person in the military service rented his house during the time he was unable to live in it insofar as a timely claim for homestead exemption is concerned. This act of the General Assembly made no provision for any retroactive effect and therefore did not become effective until the date it was approved by the Governor, which was February 15, 1952. Irrespective of my view that it makes no difference whether or not a person in the military service rents his house, unless a timely application for homestead exemption is made, such exemption cannot be allowed. PUBLIC REVENUE-Income Taxes-Athens Cooperative Creamery The Athens Cooperative Creamery is exempt from state income taxes. April 10, 1952 Honorable Charles D. Redwine Commissioner of Revenue In response to your request for my opinion as to whether the Athens Co- 212 operative Creamery, a corporation organized under the Co-operative ;Marketing Act of 1921, is operating within the exemption provision of the income tax laws of this state as set out in Section 92-3105 (h) of the 1933 Code of Georgia, I am of the opinion that it is. Section 92-3105 (h) provided, before the act of the 1952 General Assembly amending this Section, as follows: "(h) Farmers, fruit growers, or like organizations, organized and operated as sales agents for the purpose of marketing the products of members and turning back to them the proceeds of sales, less the necessary selling expenses on the basis of the quantity of produce furnished by them." The law requires this strict construction of an exemption provision from a taxing act of general application. Under this provision and the facts you supplied me concerning the operation of this corporation, there was some doubt as to whether this corporation was exempt under a strict construction of the legislative intent expressed by this provision. The General Assembly has now clarified their intent as to this type of corporation. The General Assembly in 1952 passed an act to amend that exemption provision so as to add the phrase: "and other non-profit agricultural associations organized and operated under the provisions of the Co-operative Marketing Act of 1921." In passing this amendment the General Assembly stated in that amendment that it was for the purpose of showing the original intent of the General Assembly when the exemption provision was passed as a part of the Income Tax Act of 1931. There is a general principle of law that the legislature best knows its own intent and may so declare it when one of its acts is not clear. Such a declaratory or expository statute is not for the purpose of changing the law but declaring what it always has been. 15 A.L.R. (2d) 1136 and cases cited therein. Therefore, it is my opinion that this 1952 act has so clarified this Section as to include any Co-operative incorporated under the terms of and within the requirments of the Co-operative Marketing Act of 1921. PUBLIC REVENUE-Income Tax-Residence (Unofficial) Income received from the sale of a business by a resident of this state is subject to the state income tax. April 3, 1952 Mr. Robert L. Osborne You request my opinion as to what part of the installment payments you receive from the sale of your Nebraska business will be taxable in this state when received after you become a resident of this state. In order to become fully acquainted with this situation and the Revenue Commissioner's position, I have had a conference with Honorable Fielding L. Dillard, Director, Income Tax Unit, in which we discussed your letter to the le John B. Hurley You request information concerning your civil jurisdiction over persons coming within your militia district. Code Section 24-1004 provides: "Their civil jurisdiction extends over persons resident of their respective districts, and itinerant persons, and to persons of other districts in certain particular cases provided for in this Code." This Code Section, in referring to persons "resident of their respective districts," covers those persons who are actually residing in the militia district. The provision in said Section relating to "itinerant persons" would cover persons falling in the category similar to traveling lightning rod salesmen, jewelry salesmen, etc., who are only traveling through the district. It would not, in my personal view, apply to a person who was actually a resident of an adjoining district, because the jurisdiction of that person would be in the justice court of the adjoining district. The last part of the above cited Code Section, which applies to persons of other districts and particular cases, refers generally to suits against makers and endorsers, co-endorsers, etc. The instance in which you cite that a person merely travels in your district to perform the duties of his job and then returns to his home in another district would not give you jurisdiction over this person for the purpose of civil suit. COURTS-Justice of Peace-Fees (Unofficial) A justice of the peace is not entitled to have fees _paid him by the county in cases resulting in nolle prosequi. March 4, 1953 Honorable Thomas J. Brown, Jr. Replying to your recent letter relative to fees of Justices of the Peac.e 312 being paid from the County Treasury in certain criminal cases, your attention is directed to Section 27-2932 of the 1933 Annotated Code of Georgia which provides: "The provisions of this law (Sections 27-2928 to 27-2932) shall only apply to criminal cases, wherein, a warrant or warrants have been issued and have resulted in an accusation or an indictment and a conviction has been had on same." It would be my unofficial view that a nolle prosequi could not come within the definition of the language used in the above-cited Code Section, to-wit: " . . . and a conviction has been had on same." COURTS-Justice of Peace (Unofficial) A justice of the peace is not authorized to issue subpoenas to material witnesses after a court of inquiry has been held and the accused bound over or committed to trial in the superior court. Honorable W. L. Bramlett June 18, 1953 You request that I advise you when a Justice of the Peace may issue subpoenas to material witnesses to appear before a grand jury, under Section 27-413 of the Code of Georgia. Section 27-413 of the 1933 Annotated Code provides: "When any person accused of a criminal offense before a court of inquiry is bound over or committed for trial in the superior court, the officer holding the court of inquiry shall, at the time of the preliminary trial, give a subpoena to all material witnesses examined for the State to appear and testify before the grand jury at the term to which the defendant is committed or bound to appear, and after such preliminary trial and commitment or. binding over the prosecutor may apply to the clerk of the superior court and obtain a subpoena for any person deemed by him to be a material witness for the State before the grand jury; and the subpoenas issued under this section shall be effectual in compelling the attendance of the witnesses to appear and give evidence before the grand jury; and the officer holding the court of inquiry and the clerk shall, at the term of the court to which the accused is committed or bound to appear, furnish, on the first day of the term, the prosecuting officers with a complete list of all persons so subpoenaed." You will note that the above statute clearly provides that when a person accused of a criminal offense before a court of inquiry is bound over or committed for trial in the superior court, the Justice of the Peace holding the court of inquiry shall at the time of the preliminary trial give a subpoena to all material witnesses examined for the State to appear and testify before the grand jury at the term to which the defendant is committed or bound to appear. It further provides that after such preliminary trial or commitment or binding over, the prosecutor may apply to the clerk of the superior court and obtain subpoenas for any persons deemed by him to be material witnesses for the State before the grand jury. The Justice of the Peace would not be authorized to issue such subpoenas to material witnesses after a court of inquiry has been held and the person bound over or committed to trial in the superior court. 813 COURTS-Time of Holding J. P. Court (Unofficial) The time and place of holding a justice's court in a militia district cannot be legally changed except by following the statutory procedure. September 15, 1953 Honorable R. S. Wimberly I am pleased to acknowledge receipt of your letter of September 9, 1953, requesting that we be of such assistance as we can to you in determining if there is any authority for a Justice of the Peace to change the time of holding his court, in the Justice's discretion. Section 24-901 of the 1933 Annotated Code of Georgia provides in part: "Justices of the peace shall hold their respective courts monthly at fixed times and places; ... " (Underscoring supplied) Section 24-902 of the 1933 Annotated Code of Georgia provides an exception for such courts of militia districts embraced in whole or in part within the corporate limits of cities having a population of five thousand inhabitants, and you will note that the same language, "time and place fixed as now provided by law" is used in this section as used in Section 24-901 above cited. The Supreme Court of Georgia, in the case of McDonald v. Marshall, et al, Com'rs., 185 Ga., at page 440, held: "This law does not, ... permit the individual justices of the peace who are within the purview of the section to change the time and place of holding their court as they may desire." (Underscoring supplied) Section 24-906 of the 1933 Annotated Code provides how often a place of holding a justice court may be changed, and Section 24-907 provides what notice must be given for such change. In the case of Freeman v. Gaither, 76 Ga. 741, the Supreme Court of Georgia held: "Justice courts must be held lThOnthly at fixed times and places, and justices have no authority to hold their courts at other times or places. Therefore, a judgment rendered by a notary public and ex officio justice of the peace . . . at a time different from that fixed for the holding of the justice court by the justice of the district, was void." Under the above authorities, it would be my unofficial view that when a time and place have once been established for the holding of the justice court in a militia district, the time nor the place cannot be changed except by following the procedure and notice outlined in the above cited authorities. COURTS-Justice of Peace (Unofficial) The Commissioners of Roads and Revenues may in their discretion furnish a typewriter for use by a Justice of the Peace of said county. September 15, 1953 Honorable Felix Williams You request that we assist you in determining whether or not a county would be authorized by law, to purchase a typewriter for a Justice of the Peace in the City of Swainsboro, Georgia under Code Section 24-905, or any other law of the State of Georgia. Section 24-905 of the 1933 Annotated Code of Georgia provides: "The commissioners of roads and revenues or other authority upon whom such duties fall in the various counties shall have the power in their discretion 814 to provide from time to time and pay for suitable quarters for the holding in any militia district in the various counties of justice of the peace courts, and to keep the same in repair, and to furnish and keep in repair the necessary furniture and other materials necessary for the conduct of such courts, and pay for the same out of the county funds." The above cited statutory provision, in addition to providing that the commissioners of roads and revenues in their discretion may provide and pay for suitable quarters for the holding of justice courts in the militia districts of the county and keeping them in repair, may furnish and keep in repair the necessary furniture and other materials necessary for the conduct of such courts, and pay for the same out of the county funds. This section has not been repealed or modified and so far as we are able to find is still in full force and effect. The words "necessary furniture and other materials necessary for the conduct of such courts," is a very broad and comprehensive coverage of furniture and materials which would necessarily cover writing instruments, such as pens, ink, pencils and, if the volume of business required it, may include a typewriter which is merely a mechanical improvement upon the other writing devices. It is my unofficial and personal view that under the broad authority granted to the commissioners of roads and revenues, or other authority upon whom said duties fall in the various counties, they would have, within their discretion, the authority to purchase and furnish a typewriter for the use of the justice of the peace, if they should deem it necessary in order to properly carry on the duties of the court. It is my further personal and unofficial view that a justice of the peace could not force the county commissioners to make such a purchase, for the reason that under the above cited statutory authority it is a discretionary power vested in the commissioners of roads and revenues or other authority upon whom such duties fall in the various counties. COURTS-Justice of Peace Fees (Unofficial) A justice of the peace is entitled to a fee of $2 for each criminal warrant issued. If the person against whom the warrant was issued is not returned before such justice for committal hearing, such justice of the peace is not entitled to any more fees. April 2, 1953 Honorable I. F. Barksdale I am pleased to acknowledge receipt of your letter relative to your authority to receive costs in criminal cases. Section 24-1601 of the 1933 Code of Georgia specifies the fees a Justice of the Peace is entitled to receive in criminal cases. Y<>u will note from an examination of this section of the Code that you would be entitled to a fee of $2 for "each criminal warrant issued." If the person against whom the warrant was issued was not brought back before you under the warrant issued by you, that would be the only fee that could be received for the warrant. The issuance of a warrant is a ministerial duty and the arresting officer has the authority, when he apprehends the person named in the warrant, to take him before the nearest officer authorized to hold a court of inquiry. The arresting officer does not under the law have to carry the person to the officer issuing the warrant. I would suggest that you read the case of Ormond v. Ball, 120 Ga., beginning 815 at page 916, which gives a very thorough and comprehensive analysis of the power and authority of Justices of the Peace and Constables under the present laws of Georgia. COURT-Justice of Peace (Unofficial) 1. A justice of the peace is not authorized to charg.e a fee for recording a criminal warrant in addition to the regular fee charged for issuing such warrant. 2. Peace warrants and bastardy warrants require the same fee for issuing as criminal warrants. No recording fee is permissible as to such warrants. Honorable Emory M. Heirs January 30, 1953 You ask the following questions: "1. Can a fee for recording criminal warrants on criminal docket be charged in addition to regular $2.00 fee for issuing criminal warrants? If so, how much fee? "2. Would peace warrants and bastardy warrants carry the same fee for issuing as criminal warrants ? If recording fee is allowed would charge be same as criminal warrants in general? "3. When a justice of the peace conducts a preliminary hearing based on a criminal warrant, can there be a fee charged for such service? If so, how much fee, and who should be charged for such service?" In answer to your first question, it would be my unofficial view that a justice of the peace can only charge a fee for those items set forth in Section 24-1601 of the 1933 Annotated Code, 1951 Cumulative Pocket Part, and there does not appear any item for recording a criminal warrant. There is an item for "docketing each case," but the issuing of a criminal warrant does not become a case unless the warrant is returned to the issuing justice of the peace for a preliminary or commital hearing, and in this event the justice would be entitled to the fee provided in the item stating "taking examination of person charged with criminal offense" and the other items covering commitment hearings. In answer to question two, it would be my unofficial view that peace warrants and bastardy warrants fall within the category of the item in Section 24-1601 of the Code: "Each criminal warrant issued-$2.00". That part of question two relative to recording fee falls within the category as the answer to question one. In answer to question three, your attention is called to the items set forth in Section 24-1601: "Taking examination of person charged with criminal offense ___ --- __$1.25 "Examining each witness in criminal cases_____________________________ ------------------$ .30 "Making out commitment ____________________ --------------------------------------------------------------$ .35 "Judgment in each criminal case "Waiving commital trial ..." and the various other items applicable to a commitment hearing. A Justice of the Peace would be entitled to receive the fees enumerated in Seeton 24-1601 that are applicable to commitment hearings provided he performs the duties of which the fee for each item is specified. In connection with your third question, I would suggest that you read the case of Ormond vs. Ball, 120 Ga. 916, in which the powers of courts of inquiry as held by the Justices of the Peace are thoroughly discussed by the Supreme Court of Georgia. 316 COURTS-Ordinary (Unofficial) The procedure for the discharge of a temporary administrator is discussed. June 26, 1953 Hon. Wilbur L. Council You ask for my opinion concerning the method of discharge of a temporary administrator whose discharge was authorized by Act No. 400, Georgia Laws 1953, p. 451. The act provides as follows: "Where there is no necessity for the appointment of a permanent administrator and temporary administrator has been appointed, the temporary administrator may be discharged in the same manner as provided for discharge of permanent administrator." It is my opinion that a temporary administrator who has completed the duties set out for him by law should file a written petition in the Court o:f Ordinary of the county wherein administration was pending asking to be discharged. Upon such petition, the ordinary must issue a citation notifying all interest~d persons that such petition has been filed, which citation shall be published once a week for four weeks in the official newspaper of the county. The temporary administrator should make a final return before the date o:f filing of the application for discharge. The application should be heard at the next regular term of the Court of Ordinary after the publication of the citation. The petition which the temporary administrator should file should follow the same :form and language, for the most part, wherein applicable, as a petition :for discharge of a permanent administrator. COURTS-Ordinaries-Cash Bonds (Unofficial) 1. In certain instances involving traffic offenses, ordinaries have the au- thority to authorize the sheriffs and other peace officers to accept cash bonds. 2a. Where such bonds are forfeited and the case is ordered disposed of and settled, the proceeds thereof should be distributed as any fine would be. b. Where the bond is forfeited and the case left open for subsequent prose- cution, the proceeds are not treated as a fine but should be treated as proceeds from the bond that has been forfeited according to the applicable statutory provisions. March 26, 1953 Mrs. Gladys M. Pope Your first question is whether said Senate Bill No. 74 (Ga. Laws 1953, Jan. Feb. Sess., p. 331) gives an Ordinary the right and power to authorize the sheriff or his lawful deputy to accept cash bonds for the personal apearance of a person arrested to the court of ordinary and if so, whether said ordinary has the right and power to forfeit said bonds without the necessity of the statutory procedure of forfeiting bonds in the event of the failure on the part of the person so arrested to appear in said matter. There can be no doubt that the answer to this question is in the affirmative. Sec. 92A-501 (et seq.) gives the courts of ordinary in counties that have no city or county courts, the jurisdiction over traffic law violations. The ordinaries in these counties are authorized by the above cited sections to conduct trials, receive pleas of guilty and impose sentence upon such violators. Senate Bill No. 74 reads in part as follows: 31'7 "Any sheriff of the State of Georgia, or his lawful agent or deputy, or any other county officer charged with the duty of enforcing the traffic laws of this State who makes an arrest outside of the corporate limits of any municipality of this State for the violation of any traffic law, and has been authorized, as provided herein, by the judge having jurisdiction of such offense, to accept cash bonds, may accept a cash bond for the personal appearance of the person so arrested in lieu of a statutory bond or recognizance." Therefore in those counties where ordinaries have jurisdiction of traffic violations they are the judges referred to in the bill and may authorize the sheriff to accept cash bonds for traffic violations and also may forfeit said cash bond without the statutory requirement when the defendent fails to appear. The second question is whether any ordinary acting under said Senate Bill No. 74 is authorized to collect from forfeited cash bonds insolvent costs and if these costs are collected and paid into the county treasury would the officers of the court of ordinary have a lien against that insolvent fund. The bill provides that when a cash bond is forfeited without meeting the statutory requirements, the judge forfeiting it has two alternatives: First, to treat the case as disposed of and settled and to distribute the proceeds as any fine would be, and secondly to merely forfeit the bond and leave the case open to subsequent prosecution. In the case of Cooper et al. v. Lunsford, Ordinary, et al., 203 Ga. 166, the court stated that laws giving designated criminal jurisdiction to courts of ordinary in counties wherein there is no county court or city court, authorize the establishment of an insolvent cost fund for the benefit of the officers of the court, and that the fund should be paid into the county treasury and kept separate and distinct from other funds and that said officers have a lien against said fund. Under the ruling in this case, where a regular fine is paid in the court of ordinary, first, the officers are paid their costs and then the remainder, if there be any, is paid into the county treasury to be set up as an insolvent fund. Therefore, in a case where the ordinary forfeits a cash bond and orders the case disposed of and settled, the proceeds of such forfeited bond should be distributed as any fine would be, namely, to first pay the officers' costs and then pay the remainder into the county treasury to become a part of the insolvent cost fund. And, as in the case of a regular fine, the officers of the court would have a lien against the fund. In the second case where the ordinary forfeits the bond and leaves the case open to subsequent prosecution the proceeds of the forfeited bond are not treated as a fine but should be treated as the proceeds from a bond that has been forfeited, according to the applicable statutory requirements. COURTS-Ordinary-Insolvent Fund in Ordinary's Court (Unofficial) Under the act of 1953 (Ga. Laws 1953, Jan.-Feb. Sess., p. 416), the ordinary is authorized to provide for the creation of an insolvent cost fund. May 21, 1953 Hon. J. J. Godley I have received your recent letter in which you asked my opinion concerning certain parts of Act No. 393, (Ga. Laws 1953, Jan.-Feb. Sess., pp. 416, 417), approved March 3, 1953, relative to the disposition of fines in traffic cases handled in the Court of Ordinary. 318 You state in your letter that it has been your practice to set up an insolvent account for the surplus funds from the Court of Ordinary traffic fines and forfeitures, and you desire to know whether such a practice is legal under provisions of the act above mentioned. You will notice that under the new act, it is stated that the officers of the court shall be first paid all costs arising in such case, and after the payment of all costs, the remainder of such fine or fines shall be paid into the county treasury. To construe this provision as meaning that the officers would receive costs only in the particular case where the fine was paid, then it would be necessary to entirely disregard the phrase: "and after the payment of all costs." Furthermore, there are no specific provisions contained in the act as to the final disposition of fines in excess of costs in each particular case. The act merely directs that such excess be paid into the county treasury. While it is clear that this fund must be paid into the county treasury, the act makes no provisions as to the manner and purposes for which the fund is to be held. Code Sec. 92A-505 of the Ann. Supp. states that an arresting officer for the court of ordinary shall be allowed the same cost as now allowed in superior court. It must be noted that it provides for the same "costs" not "fees." In the superior court, sheriffs are entitled to costs in such cases in which there are no fines paid; the costs in such cases are carried forward and entered into an insolvent-fund, and in cases where the fine exceeds the costs, this excess of fines over costs in the particular case is distributed among the officers according to law. Therefore, in order to make the sheriffs' costs the same as now allowed in superior court, the act necessarily contemplated that the sheriff would receive costs in cases where no fine is paid, and the existing law in this state provides for such payment only by and through the creation of an insolvent-cost fund. Had the act specifically directed the creation of an insolvent-costs fund, the county treasury would have been the proper place for disposition of the funds, but having failed to do so, it is my opinion that the ordinary is authorized to maintain an insolvent-cost fund. It would appear that the only purpose of the new act amending the old law is to provide that the ordinary shall pay the remainder of all fines for the preceding months by the 15th day of each month rather than in 24 hours, and to provide that the ordinary shall furnish a list of the names of the defendants, the fines and costs of the case and to whom paid, and the balance to be paid into the treasury, and that the ordinary shall be given a written receipt by the treasurer. From the above, it can be concluded that the fine paid in each individual case does not have to be used for payment of costs in that case only, and -the remainder remitted to the county treasury, but such remainders to the county treasury will be made after the payment of all costs as hereinabove set out and provided by law. COURTS-Ordinary's Fee in Lunacy Hearings (Unofficial) In lunacy cases the Ordinary is entitled to a fee of $20.00 and the three members of the lunacy Commission are each entitled to their actual expenses; any other costs in the case which might be incurred cannot exceed $10.00. September 29, 1953 Mr. Clayton H. Hollingsworth, Jr. You ask my opinion as to what are the expenses allowed under law for t:rying a commission of lunacy. 819 I must confess that there exists some ambiguity in the law as it is now written; Prior to 1952, Code Section 49-613 provided that two physicians and a reputable person, an attorney, shall sit as a lunacy commission, and reads as follows: " the ordinary shall draw his warrant upon the treasurer of his county to defray the expenses of trying a commission of lunacy . . : 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." In Ga. Laws 1952 pp. 24, 25, the above Code Section 49-613 was amended by striking certain words therefrom above-quoted, to wit: " . . . 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.", and inserting in lieu thereof the word "persons," so that Code Section 49-613 now provides that "the ordinary shall draw his warrant upon the treasurer of his county . . . to defray the expenses of trying a com- mission of lunacy . . . Provided, the sum to be paid in each case shall not exceed $10, and actual expenses to each of said reputable persons." It is quite apparent that the intent and purpose of the General Assembly in enacting the 1952 law was only to place the payment due to the "reputable person" member of the lunacy commission on the same basis as that of the "reputable physicians, so that now all three members of the commission are paid their "actual expenses" as payment for services in serving as members of the commission. It must be noted, however, that the statute states that "the sum to be paid in each case shall not exceed $10, and actual expenses to each of said reputable persons." The figures "$10" obviously do not apply to the payment of the services of the members of the commission, for the conjunctive "and" follows said amount and relates to the payment of actual expenses to the members of the commission: said reputable persons. It would appear that the figures "$10" would probably refer to the fee allowable to the Ordinary for his services in connection with the lunacy trial. This is the same sum allowable in the 1952 law and also prior thereto since the enactment of the Code in 1933. Until 1950, no problem existed concerning this sum for Code Section 24-1716, which enumerated the fees of the Ordinary, allowed $10 for services in conection with each lunacy case. But in Ga. Laws 1950 p. 140, the fee allowed to the Ordinary for his whole services in connection with each lunacy case was raised from $10 to $20. Thus, an apparent conflict exists. In the printed opinion of the Attorney General for 1945-47 at page 85, in dis- cussing the fees of the ordinary in lunacy cases, it is held that while Code Sec- tion 49-612 fixes the fees of the ordinary at $5 and the fees of the sheriff at $3, yet "by reason of Section 24-1716 of the Code as amended and as set forth in the Anotated Supplement that the ordinary is entitled to receive $10 for lunacy cases." Of course, this opinion was issued before the 1950 Act setting the fees of the ordinary in such cases at $20, but the same conclusion would be reached evenso, and your attention is invited to the reasoning in that opinion. Therefore, it is my opinion that the enactment of the amendment to Code Sec. 24-1716 in 1952 did not by the repealing clause thereof affect the previously enacted statue in 1950 enumerating the fees of the ordinary, so that the ordinary in lunacy cases is entitled to a fee of $20, and the three members of the commis- 320 sion are entitled to actual expenses, and any other costs in the case, that might be incurred, cannot exceed $10. COURTS-Ordinaries-Traffic Cases (Unofficial) The various duties and powers of the ordinary in handling traffic cases are discussed. Hon. T. A. Rogers January 6, 1953 You pose three questions, as follows: (1) What are your duties in handling highway cases; (2) What is the minimum fine; and (3) What costs are allowed. In answering question 1, please allow me to call your attention to 92a-501 of the Code of Georgia, which reads as follows: "Jurisdiction of courts extended.--The jurisdiction of the courts of ordinary, of municipal courts and police courts of the incorporated towns and cities of this State, are hereby enlarged and extended so that said courts, acting by and through the judge or presiding officer thereof, shall have the right and power to conduct trials, receive pleas of guilty and impose sentence upon defendants violating the penal provisions of this Title, and upon defendants violating any and all other criminal laws of this State reiating to traffic upon the public roads, streets and highways of this State, where the penalty for the offense does not exceed that of the grade of misdemeanor, in the manner required by law. (Acts 1937-38, Ex. Sess., p. 558.)" Sec. 92a-502 of the Code reads as follows: "Jurisdiction of court of ordinary.-The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdemeanor cases arising under this Title, and other traffic laws of the State, in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts in incorporated cities and municipal court judges, for offenses arising within their respective jurisdiction. (Acts 1937-38, Ex. Sess., pp. 558, 559.)" From the above it is obvious that you would have the right to try cases involving public safety acts. Question 2-your attention is invited to Code 92a-9901-9919 wherein cer- tain specific fines and sentences are enumerated for those found guilty of violating the provisions of said act. Where no specific provision is provided other than the guilty party may be punished as for a misdemeanor, your attention is invited to Code Sec. 27-2506 which outlines the minimum and maximum fines and work sentences allowed for those guilty of the misdemeanor. In answering question 3, which makes inquiry about costs, I call your attention to Code Sec. 92a-505 which reads as follows: "Costs.-The following schedule of costs shall apply in any case disposed of under this Chapter: Arresting officer, the same costs as now allowed in superior court. Warrant, if issued ------------------------------------------------------------------------------------------ $1.25 Entering case on docket, receiving plea or holding trial and imposing sentence, for entire service -------------------------~---------------------------------------------------- 3.00 821 In case a defendant demands a trial by jury and is bound over to another court the costs shall await the final disposition <>f the case. (Acts 1937-38, Ex. Sess., pp. 558, 560.)" Code Sec. 92a is found in the pocket edition under Title 93. COURTS-Ordinaries-Cash Bonds (Unofficial) 1. An ordinary is authorized to empower a sheriff to accept cash bonds for violations of traffic laws. 2. An ordinary has jurisdiction in misdemeanor c:ses involving only violations of traffice laws committed outside the limits of a municipality. March 11, 1953 Honorable D. N. Achord You inquire as to Senate Bill No. 74, (Ga. Laws 1953 Jan.-Feb. Sess., p. 331) which was passed by the recent General Assembly and signed into law by the Governor. Apparently, from your letter, you are interested in knowing about the taking of cash bonds in cases for which this bill provides. The bill authorizes the sheriff of the several counties of the state to take a cash bond for the violation of any traffic laws which have been violated in his county. However, before the sheriff is authorized to take such bond, the judge of the court to which the bond is made returnable or which has jurisdiction on such matters shall first instruct the sheriff and give him authority to take such cash bond. My interpretation as to the question you propound does not give you any jurisdiction in any misdemeanor cases except those committed outside of the limits of a municipality, and then only in cases which are in violation of traffic laws. SHERIFFS-Fees-Felony Cases (Unofficial) All fees accruing to the sheriff in felony cases should be paid from county funds rather than from the fines and forfeitures fund: June 8, 1953 Honorable W. H. Miller You inquire if the Sheriff should first participate in the fine and forfeiture fund and then receive any balance due him from the county treasury in obtaining his fees in felony cases. Section 24-2823 of the Georgia Code Annotated of 1933, Temporary Supplement, relating to sheriffs, provides, among other things: "All costs arising from services rendered in felony cases shall be paid from county funds, whether the defendant is convicted or acquitted." This is specific and certain language and no further qualifications are made. No mention is made of the fine and forfeiture fund but on the other hand the words "county funds" are used. Therefore, it is apparent that all fees accruing to the Sheriff in felony cases should be paid from the county funds rather than the fine and forfeiture fund. It would naturally follow then that in felony cases the Solicitor General and Clerk would receive the amounts of the fine or forfeiture provided by law for them and the remainder would go into the insolvent cost fund. The Sheriff at the same time would be paid his fees out of county funds. 322 Section 27-2920 of the Georgia Code Annotated of 1933, Temporary Supplement, provides as follows: "In all criminal cases wherein any county pays costs or fees to any officer or any court, such costs and fees shall thereupon become a claim, as to said costs and ;fees so paid, against said fine and forfeiture fund in favor of and for the benefit of the county so paying such costs and fees. Said claim, for the benefit of said county, shall at all times require and take the same priority of payment as against said fine and forfeiture fund as though said claim or such costs and fees were still held by said officer receiving such payment. Upon payment of such costs or fees, the c~unty shall thereon become subrogated to the rights of the officer receiving such payment as to payment out of such fine and forfeiture fund, with all rights to enforce same at any time enjoyed by such officer." Since this 'Code Section makes no discrimination between felonies or misdemeanors it is readily apparent that the county would be subrogated to the rights of the Sheriff to participate in the fine and forfeiture fund, where said county had paid the Sheriff his costs in a felony case. It should be noted that this opinion applies only to payment of Sheriff's fees in felony cases. SHERIFFS-Jail Fees (Unofficial) A sheriff is entitled to only one jail fee for any one prisoner, notwithstanding the fact that there is more than one case against such prisoner. Honorable John R. Rogers May 1, 1953 You ask whether the sheriff is entitled to more than one jail fee for only one prisoner where there is more than one case against the prisoner, even though the service is performed only once. I am enclosing a copy of an opinion which I rendered on January 24, 1946 to Mrs. John B. Guerry, in which I held in effect that a sheriff is entitled to only one fee for each arrest, regardless of the number .of offenses charged against the prisoner. It is my opinion that this same principle would hold true in the situation to 'which you refer. COURTS-Sheriffs' Fees in Jp Courts (Unofficial) Except in certain specified instances, a sheriff is not authorized to receive fees for serving papers issued by a justice of the peace. January 19, 1953 Honorable W. R. Wilson You request that I advise you if a sheriff, who serves papers in civil cases in a justice of the peace court, would be entitled to sheriff's costs or constable's costs in these cases. Your attention .is called to Sections 24-1102 and 24~1106 of the 1933 Annotated Code which provides: 24-1102. "All suits before justices of the peace shall be. commenced by written summons, which shall be issued and signed by the justice of the peace of the district in which the suit is brought, and shall be directed to any lawful coniStable of the county in which the suit is commenced, commanding the defendant to appear at the time and place of the trial, which time and place shall 323 be specified in said summons, and such justice of the peace shall attach a copy of the note, account, or cause of action sued on, to said summons at the time the same is issued." 24-1106. "The summons may be served by the constable of the district in which the suit is commenced, or if there be no such constable, or if he be a party to or interested in the case, such summons may be served by any constable of the county; and it shall be lawful for any constable of the several counties to execute and return any process issued by a justice of the peace of sa;id counties, but he shall return the said process to a justice of the peace residing in the militia district where the defendant or defendants resided at the time of issuing said process." You will note that the above cited Code Sections are a part of the statutory procedure for the holding of suits in justice of the peace courts and provide that summonses shall be directed to the constable. The costs for constables and justices as provided in the Code for justice courts in general are the o,nly costs allowed for cases in justice courts, except specific instances such as an execution on real estate, which shall be executed by the sheriff under Section 24-1411 of the Code. COURTS-Cl~rks' Fees-Criminal Cases (Unofficial) The Code of Georgia does not provide any per diem for the clerk of the superior court while in attendance upon the trial of criminal cases. Hon. A. R. Smith May 13, 1953 In your recent letter you state that you have been charging the county $10.00 per day for each day the Superior Court is in session, whether in the civil or criminal division, and you wish my opinion concerning the legality of your charge. I would suggest that you turn to the Supplement of the 1933 Ga. Code Ann., Code Sec. 24-2727, wherein you will note that under civil cases the clerk of the court is entitled to charge and collect for each day's services in attendance upon the court the sum of $10.00. There does not appear to be a per diem listed under criminal cases. COURTS-Clerk of Superior Court to Serve as Ordinary (Unofficial) The Clerk of the Superior Court may serve as Ordinary when both the Ordinary and the City or County Court Judge are disqualified. Honorable Edward B. Liles October 28, 1953 You request my opinion pertaining to the sequence of authority in filling the office of Ordinary where the regular ordinary is incapacitated, You refer to Sections 24-1707 and 24-1710 of the Code of Georgia. The former statute provides for filling of vacancies and the later statute provides for proceedings when the ordinary is disqualified. Section 24-1707 provides that the Judge of the city or county court may serve in case of a vacancy in the office of ordinary and "if there be no such judge or if for some reason such judge can not serve as ordinary" the Clerk of the Superior Court shall serve as ordinary. Section 24-1710 provides that the judge Of the city or county cour1; 324. may serve as ordinary and "if there be no such courts" then the Clerk of the Superior Court shall act as ordinary. You ask what the sequence would be under Section 24-1710 in a case where the ordinary is absent and the city or county court judge is also absent, but where in fact there is such a city or county court within the county. The provision contained in Section 24-1710 to the effect "if there be no such courts" is identical to the provision contained in 4785 of the Code of Georgia of 1910. In construing this section in the case Of Day vs. Smith, 172 Ga. 467, the Supreme Court of Georgia held at page 471, that an order entered by the clerk acting as ordinary to the effect that the ordinary was disqualified from acting, by sickness, "there was no county-court judge or city-court judge in the county" and that for this reason the Clerk of the Superior Court of the county exercised the jurisdiction of the ordinary in this case, which was a sufficient statement of disqualification to authorize the clerk to act. Thus it will be seen that the order entered by the clerk in the Day case, supra, to the effect that there was no county-court judge or city-cour judge in the county, would not comply in terms with the provision of Section 4785 of the Code of Georgia of 1910 conditioning the exercise of such authority by the clerk by the proviso "if there be no such courts." I feel that the decision in the Day case would be most persuasive, if not controlling, upon the court today in construing Section 24-1710 of our present Code, the effect of which would be to allow the clerk to serve as ordinary when both ordinary and the city or county court judge are disqualified. COURTS-Superior Court Clerks' Retirement Fund (Unofficial) The fact that the clerk of a superior court is not a member of the Superior Court Clerks' Retirement Fund does not relieve him from collecting and remitting the $1 fee (as provided by law) from fines of $5 or more collected in his court. Honorable F. R. Kendrick March 4, 1953 The pertinent part of your letter reads as follows: "I have just had a letter from Hon. Albert M. Harrell, clerk of the Superior Court of Dodge County, in which he states that since he is not a member of the Superior Court Clerks' Retirement Fund, he is not required to collect and remit the $1.00 fee from fines of $5.00 or more collected in his court. "I will appreciate it very much, if you can give me an unofficial opinion on this question at your earliest convenience." Section 8 of the Act creating the Superior Court Clerks' Retirement Fund (Ga. Laws 1952, p. 238) reads as follows: "Section 8. In all criminal and quasi-criminal cases for violating State statutes tried in any court in Georgia of which the clerk of the superior court is clerk, wherein a fine is collected in an amount of $5.00 or more, or wherein a bond is forfeited in said amount, the sum of $1.00 for each such case each year shall be paid to the board quarterly, or at such time as the board may provide, by the collecting authority. It shall be the duty of the collecting authority to keep accurate records of the amounts due the board, and such records may be audited by the board at any time. The sums remitted to the board under this section shall be used for the purposes provided. for in this Act. Provided, that in all 825 counties over 300,000 population, where the compensation of the clerk is on a salary basis, the provision of this section shall not apply." The provisions of that section are mandatory and I am of the opinion that this amount must be paid regardless of whether the clerk is a member of the retirement fund. CREDIT UNIONS, ETC.-Licenses (Unofficial) Small loan companies are required to pay a license tax of $100 per year. April 17, 1953 Honorable Wilson B. Wilkes In your letter you state: "It is my understanding that there is presently on the statute books of this State a law that requires the payment of license tax by small loan companies. This license tax as I understand it is not collected by the Revenue Department but is so set up to be collected by the State Bank Examiner. I refer to the Act of 1920 No. 741, entitled Loan Business Regulated. It is also Code 25-301 et seq. I would appreciate you giving me the exact law on these small loan companies and whether or not they are liable for a license tax as it presently stands." Section 25-301 of the 1933 Georgia Code, Annotated is as follows: "No person, partnership, or corporation shall engage in the business of making loans of money, credit, goods or things in action in the amount or to the value of $300 or less, and charge, contract for, or receive a greater rate of interest than eight per centum per annum therefor, except as, authorized by this Chapter, and without first obtaining a license from the Superintendent of Banks." This section has not been repealed or amended and is now the law of Georgia. All persons, firms or corporations engaged in making loans of the type described in this section are required under the law to obtain a license from the State Superintendent of Banks and pay an annual fee of $100. The only loan companies who would be required to pay this tax would be those coming within the provisions of the above-quoted section. Loan companies operating outside of its provisions would of course not be required to obtain a license from the Banking Department and pay the fee required by law. CRIMES AND PUNISHMENT-Abandonment (Unofficial) Abandonment of a minor child is a misdemeanor, but if the father or mother wilfully and voluntarily abandons such child and leaves the state, the offense is a felony. Mr. Francis P. Marion July 31, 1953 You request that I advise you whether or not the abandonment of a child is a felony under the laws of this state. I am glad to quote to you the provisions of Code Section 74-9902: "If any father or mother shall wilfully and voluntarily abandon his or her child, leaving it in a dependent condition, he or she, as the case may be, shall be guilty of a misdemeanor: Provided, however, if any father or mother shall wilfully and voluntarily abandon his or her child, leaving it in a dependent condition, and shall leave this State he or she, as the case may be, shall be 326 guilty of a felony and s.hall, upon conviction, be imprisoned in the penitentiary for not less than one nor more than three years, which shall be reducible to a misdemeanor. The wife and husband shall be competent witnesses, in such cases to testify for or against the other. A child thus abandoned by the father or mother shall be considered to be in a dependent condition when the father or mother charged with the offense does not furnish sufficient food and clothing for the needs of the child. The offense of abandonment shall be and is hereby declared to be a continuing offense. Former acquittal or conviction of said offense shall not be a bar to further prosecution therefor under this section; if it shall be made to appear that said child was in a dependent condition as defined herein for a period of 30 days prior to the commencement of prosecution." CRIMES AND PUNISHMENT-Burglary (Unofficial) Under Georgia law, burglary is in no case a capital felony. January 23, 1953 Mr. Morris N. Lipp In your letter you state that in North Carolina there is a law term~d "Burglary in the First Degree," which makes such offenses punishable by death. You then ask if the State of Georgia has a similar law. The State of Georgia fixes the penalty for burglary at any period of time between one and twenty years and under no circumstance is it a capital offense. We do, however, have a law making robbery by open force or violence punishable by death. Section 26-2502 of the Annotated Code of Georgia, 1933, Pocket Supplement, reads as follows: "Robbery by open force or violence shall be punished by death, unless the jury recommends mercy, in which event punishment shall be imprisonment in the penitentiary for life: Provided, however, the jury in all cases may recommend that the defendant be imprisoned in the penitentiary for not less than four years nor longer than 20 years, in the discretion of the court." CRIMES AND PUNISHMENT-Enticing Servants, Croppers and Farm Laborers (Unofficial) Section 66-9905, making it a misdemeanor to entice away servants, croppers and farm laborers, is not unconstitutional. Hon. John R. Wilson December 29, 1953 You inquire as to the constitutionality of Section 66-9905 of the Georgia Code Annotated, making the enticing and attempting to entice away of servants, croppers, and farm laborers a misdemeanor. You will find that the Supreme Court held in the case of Rhoden v. The State, 161 Ga. 73, that such provisions are not violative of the due process clauses of the State and Federal Constitutions. Judge Atkinson, who wrote the decision, quoted from Hoole v. Dorroh, 75 Miss. 257 (22 Sou. 829) with approval. I believe that a careful reading of this decision will prove valuable to you. You may also wish to read the decision appearing in 134 Ga. 26, in which it was held that the section was broad enough to cover turpentine farming, and the decisions appearing in 151 Ga. 332 and 22 Ga. App. 123, covering the adequacy of the accusations and indictments and demurrers, and the decisions appearing in 327 24 Ga. App. 422,27 Ga. App. 267,30 Ga. App. 666, and 32 Ga. App. 781, all dealing with the sufficiency of the evidence adduced on the trial of the issue. CRIMES AND PUNISHMENT-Obstructing Legal Process (Unofficial) Mere failure to stop pursuant to order of a peace officer does not constitute the crime of obstructing legal process under Code Sec. 26-4401. January 7, 1953 Honorable Charles Burgamy Solicitor General This is to acknowledge receipt of your letter on January 5, 1953, in which yoq set out the following facts: "A policeman for the City of Richland suspected a negro of transporting whiskey and called and told the negro to halt. The negro was driving an automobile and when the policeman ordered him to halt, said negro speeded away in said automobile." YQU ask my opinion as to whether such conduct on the part of the Negro would constitute a violation of Code Section 26-4401, relating to the crime of obstructing and resisting an officer in executing process. It is my opinion that the facts above stated would not constitute a violation of the Code Section referred to. CRIMES AND PUNISHMENT-Stop Signs Erected by State Highway Depart ment (Unofficial) A person who failed to observe a stop sign erected by the State Highway Department may not be punished therefor where such sign was not erected pursuant to order of the Department of Public Safety, although subsequent to the alleged violation said department did confirm the erection of such signs. October 28, 1953 Honorable Roy Leathers You request information relative to the authority of the State Highway Department to erect stop signs. The applicable Code Section concerning this matter is Section 63-315 of the Georgia Code Annotated (1951 Supplement) which reads as follows: "Stop signs.-(a) The Department of Public Safety is authorized to fix rules in respect to right of way at intersections of said highways or public roads outside of municipalities and to promulgate other reasonable safety rules in respect thereto, and to give notice of same by proper signs erected at or near said intersections. Said signs to be erected and maintained by Highway Depaltment maintenance department. (b) Every driver of a motor vehicle and every motorman of a streetcar shall stop at such stop signs as shall be erected or made by the Departmen!t of Public Safety at the approach of such intersections except when directed to proceed by a police officer or traffic control signal. (Acts 1939, pp. 2:95, 298) ." Under the above section in order for a stop sign to have a legal status such sign must be designated by order of the Department of Public Safety and based on that order must be erected and maintained by the State Highway Department. 328 It seems that in some instances the above section was complied with in erecting stop signs but in the majority of cases the signs were erected by the Highway Department without any authority from the Department of Public Safety. For this reason a blanket order was issued by the Department of Public Safety covering all stop signs the Highway Department had erected without proper authorization. This order became effective on June 12, 1953. Therefore, all unauthorized stop signs which had been erected prior to June 12, 1953, became validated as of that date. It should be noted that this order did not cover signs to be erected in the future since the preferable procedure seemed to be to issue a separate order for each sign to be erected in the future. We are of the opinion that a violation of one of these signS! covered by the blanket order would constitute negligence per se relative to a civil action for damages and that such violation also would be punishable as for a misdemeanor as provided in Section 68-9920 of the Code. However, it is seriously doubted if any violation of one of these signs, covered by the blanket order, which occurred prior to June 12, 1953, could be prosecuted or would be negligence per se. Such prosecution would give the order a retroactive effect since at the time of the alleged violation such sign would not have been legal and therefore there could have been no violation of it. CRIMINAL PROCEDURE-Cash Appearance Bonds (Unofficial) Except as provided by the two specified acts referred to, there are no general laws providing for the acceptance of cash appearance bonds. May 12, 1953 Hon. T. B. Converse You ask my opinion concerning certain questions pertaining to cash appearance bonds used in your county. I think that the answer to all your questions can be summarized in the following statement by Justice Atkinson in the case of Scarborro v. The State, 207 Ga. 449, wherein he stated that there is no authority under the statute laws of the State of Georgia or of the common laws to accept cash in lieu of a bail bond. The only exceptions to the foregoing rule are in two recent acts of the General Assembly. One of these acts is in Ga. Laws 1952, p. 182 wherein the authority was granted municipalities to accept cash bonds from persons charged with the violations of city ordinances, and the other is found in Ga. Laws 1953 p. 331, wherein cash appearance bonds for traffic, offenses outside of a municipality are authorized. Except in the two instances quoted, there is no authority in the State of Georgia for accepting cash bonds in lieu of the regular statutory recognizances or bail. DAMS-Non-Navigable Streams (Unofficial) A non-profit organization may legally construct dams in non~navigable streams subject to certain conditions related below. June 30, 1953 Honorable Frank Barfield The first question you ask is can a non-profit organization construct dams for certain purposes in nonnavigable streams, such as the Satilla River. 329 Section 85-1306 of the Georgia Code Annotated, 1933, provides as follows: "It shall be lawful for all corporations and individuals owning or conitrolling lands upon opposite sides of any nonnavigable stream, to construct and maintain a dam or dams across such stream for the development of water power and other purposes, together with canals and appurtenances thereof: Provided, that this section shall not be construed to release individuals or corporations constructing such dam or dams and appurtenant works from liability to private property for damages resulting from the construction and operation thereof, either by overflow or otherwise." It can be seen from this Code Section that it .is lawful to build dams in nonnavigable streams but only when the land on both sides of the damsite are owned by the builder. Even then when such a dam is built the builder is liable for any resulting damage to private property. The second question is what are the rights of the riparian owners who will be affected by the building of such dams? Section 85-1301 of the Georgia Code Annotated, 1933, provides as follows: "Running water, while on land, belongs to the owner of the land, but he has no right to divert it from the usual channel, nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner." Section 85-1302 of said Code provides as follows: "The beds of streams not navigable belong to the owner of the adjacent land; if the stream of water is the dividing lin~, each owner is entitled to the thread or center of the main current; if the current change gradually, the line follows the current; if from any cause it takes a new channel, the originai line, if capable of identification, remains the boundary. Gradual accretions of land on either side accrue to the owner." Section 105-1407 of said Code provides as follows: "The owner of land through which nonnavigable water-courses may flow is entitled to have the water in such streams come to his land in its natural and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other riparian proprietors; and the diverting of the stream, wholly or in part, from the same, or the obstructing thereof so as to impede its course or cause it to overflow or injure his land, or any right appurtenant thereto, or the pollution thereof so as to lessen its valUJe to him, shall be a trespass upon his property." These foregoing Sections show concretely that no dams could be built without the consent of the riparian owners who would be affected by such construction. And in the event such dams were built without said consent the builder would subject himself to lawsuits by said owners. The third question is whether such dams can be built in view of the fact that they would obstruct the movement of fish in the river? Section 45-132 of the Georgia Code Annotated, 1933, provides: "The Commissioner of Game and Fish is authorized to provide for the free passage of fish in the fresh-water streams of Georgia for the purpose of spawning and propagating, and to erect or cause to be erected fishladders or other passageways whereby fish may pass over any dam or other obstruction placed in the fresh-water streams of Georgia, by any firm, person or corpora- tion." Sections 45-133, 45-134 and 45-135 of said Code provides for enforcement of the above section. Therefore, in view of the above, it can be said that dams may be built in fresh-water streams provided fish passageways are also built. 330 In summing up, the following seems to be the law concerning the matter in question: Such dams as are proposed may be built provided the necessary easements or consent of the owners who will own the land adjacent to the damsites is obtained. Also provided the consent of all riparian owners who will be affected by the building is obtained, and lastly, that if and when such dams are built, proper fish passageways will be included. EDUCATION-Attell!dance by Mothers (Unofficial) The question as to whether or not a female who has given birth to a child is entitled to attend the public school system of this State is a question that should be determined by the local county board of education on the facts of the particular case. Mr. W. M. Fender August 19, 1953 You request my opmwn as to whether there is any law that prohibits a girl from attending a public school in Georgia after she has given birth to a child. There is no law as such in Georgia that would bar your daughter from school because of the birth of her child. The Constitution and the Georgia Code give the right and requires that children attend the common schools. The Constitution of 1945 (Code Section 2-6401) provides, in part, as follows: "The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation. . . . " Georgia Code Annotated, Section 32-937, provides: "Admission to all common schools shall be gratuitous to all children be- tween the ages of six and 18 years residing in the districts in which the schools are located. . . . " Georgia Code Annotated, Section 32-2104, provides: "Every parent, guardian, or other person residing within the SJ1;ate of Georgia having control or charge of any child or children between their seventh and sixteenth birthdays, shall enroll and send such child or children to a public or private school under such penalty for noncompliance herewith as is hereinafter provided." While all this is true, the Code also gives to the County Board of Education the right to make rules to govern its county schools. Under such authority, the County Board of Education may suspend children from school for conducting themselves in a manner calculated to produce disorder or committing immoral acts. See Board of Education of Cartersville vs. Purse, 101 Ga. 422. Georgia Code Annotated, Section 32-912, provides: "The county superintendent of schools and county board of education shall make rules to govern the county schools of their respective counties . . . " Georgia Code Annotated, Section 32-910, provides: "The county board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary; and when they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal 831 to the State Board of Education, and said appeal shall be made through the county superintendent of schools in writing and shall distinctly set forth the question in dispute, the decision of the county board and testimony as a~reed upon by the parties to the controversy, or if they fail to agree, upon the testimony as reported by the county superintendent of schools: Provided, that this section shall not apply to any public school system established prio;r to the adoption of the Constitution of 1877." It is therefore my opinion that the question you propound would have to be determined by the County Board of Education on the facts of the particular case. EDUCATION-School Year (1) The Visiting Teachers Law neither authorizes nor prohibits a school from directing the parents of children whose teacher is absent not to send their children to school during such teacher's absence. (2) Under the ,Minimum Foundation for Education Program, however, such action might possibly result in such children not attending school.for the period of a minimum school year, as required by said Program. November 9, 1953 Honorable M. D. Collins State Superintendent of Schools You inquire as to the legality of the action of the Chatham County Board of Education in directing parents of children whose teacher is absent not to send their children to school during such teacher's absence. As a preface to an answer to the foregoing inquiry, I want to point out, first, that the act of 1945, pages 343, 348, commonly known as the "Visiting Teachers Law," has no application here, and secondly, that while there is no specific prohibition against such action by a local school system it may be that in some .cases it would violate the minimum foundation program, Acts 1949, pages 1406, 1422. To elaborate somewhat on the first point relative to the visiting teachers law, Sections 1, 2, 3 and 4 of this law, acts 1945, pages 343, 344 (codified, Georgia Code Annotated~ Sections 32-2104 to 32-2107), apply to the various individual children eligible to attend school and do not relate to the operation of the schools themselves. If pertinent portions of Sections 1 through 4 of this law are read and construed together, their applicability is clear: "Section 1. Every parent, guardian, or other person . . . having control or charge of any child or children between their seventh and sixteenth birthdays, shall enroll and send such child or children to a public or private school .. "Section 2. The minimum session of annual school attendance . . shall be one hundred and seventyfive school days, or for the full session or sessions of the school which the child is eligible to attend. . . "Section 3. The following classes of children between their seventh and sixteenth birthdays shall be exempted from the provisions of this Ac~, t~e County and Independent School System Boards of Education to be sole judge in all such cases: ... , (b) Children excused from attendance in school by County and/or Independent School System Boards of Education in accordance with the general policies and regulations promulgated by the State Board of Education. The State Board of Education in promulgating its general policies and regulations shall take into consideration sickness, seasonable labor and other emergencies which may arise in any school community. 332 "Section 4. It shall be the duty of each County and Independent ~hool System Board of Education within the State to administer this Act and to secure its enforcement in cooperation with the other state and county agencies mentioned herein. " Thus, while the local boards of education would be authorized to excuse certain individual children from attending school because of their sickness or other like reason, the foregoing sections of the Visiting Teachers Law disclose that no authority is extended or denied to the county and independent school system boards of education to suspend operation of the schools or any part or grades thereof. I will elaborate now on the second point mentioned above, i.e., that while there is no specific prohibition against the Chatham County Board of Education directing parents of children whose teacher is absent not to send their children to school during such teacher's absence, it may be that in some cases it would violate the minimum foundation program. The Constitution of the State of Georgia of 1945, in Article VIII, Section 1, Pargraph 1 (codified, Georgia Code Annotated, Section 2-6401) provides as follows: "The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation. Separate schools shall be provided for the white anld colored races." Further, the minimum foundation program, Acts 1949, pages 1406, 1408 (codified, Georgia Code Annotated, Section 32-601), declares: "It is hereby declared to be the public policy of the State of Georgia that educational opportunities for all citizens of this State shall be equalized through- out the State so as to establish, so far as possible, a minimum foundation pro- gram of education in Georgia." See also, Georgia Code (1933) Sections 32-1501 and 1502 (Acts 1919, pages 316, 317; 1926, Extra Session page 42). Thus, it is clear both from the Georgia Constitution and from the minimum foundation program that adequate, equalized educational opportunities be afforded throughout the state, and that the period during a year in which schools shall be operated is a fundamental requisite to such a program. Section 3 of the minimum foundation program, Acts 1949, pages 1406, 1409 (codified, Georgia Code Annotated, Section 32-603) provides: "From and after July 1, 1949, the public schools of this State, including the public high schools, shall be operated for a period of not less than nine school months during each school year. Twenty school days shall constitute a school month. The school year shall begin on the first day of July and end on the 30th day of June of each year." Also pertinent to this inquiry is the provisions in Sections 4 and 15 of the minimum :foundation program to the effect that "the several .counties of this State and the various independent school systems established by law shall be the local units of administration," Acts 1949, pages 1406, 1409 (codified, Georgia Code Annotated, Section 32-604); and that "The Board of Education of any local unit of administration may operate the schools of such county or special school district ~or a longer period than nine months during any school year . . . " Acts 1949, pages 1406, 1415 (codified, Georgia Code Annotated, Section 32-617). If a school does not, on a given day, afford normal courses of study and instruction to all its students, and instead directs that certain stUdents not . 888 attend, it is clear that as to such students no school day exists which could be counted in computing the minimum school year of one hundred eighty days. It is, therefore, my opinion that the legality of the action of the Chatham County Board of Education, in directing children not to attend school on days when their teacher will be absent, depends upon whether such children will be afforded a minimum school year if such absences are not counted. That is, if such days are computed in the minimum school year then the action of the board would be in violation of the minimum foundation program; but if, exclusive of such days, the public schools are "operated for a period of not less than nine school months during each school year," no violation exists. Acts 1949, pages 1406, 1409. EDUCATION---"Consolidation of Schools; Revenue Certificates (Unofficial) 1. Section 32-915 of the Code has been repealed by Acts of the General Assembly passed at the November-December 1953 Session. 2. If the appropriations by the General Assembly for the support of education ever drop below 100 Million Dollars to twelve million dollars, the county boards of education then become responsible for payment of the state school building revenue certificates. December 17, 1953 Honorable C. C. Perkins You request information concerning House Bill No. 872 and the State School Building Revenue Certificates. First, House Bill No. 872 (Ga. Laws 1953 Nov.-Dec. Sess., p. 282) in effect, though not explicitly, repeals Section 32-915 of the Georgia Code Annotated. The second question is, "Upon whom will the final payment of State School Building Revenue Certificates fall, if the Legislature is ever unable to provide sufficient funds?" Although it is not expressly referred to in the law, in the trust indenture executed pursuant to the law, it is provided that the certificates are to be paid out of funds appropriated by the General Assembly for the support of education, and, in the event the funds appropriated by the General Assembly ever drop below 100 million dollars to 12 million dollars, then in that event the county boards of education assume responsibility, which, of course, means that the money would have to be provided by local taxes. Although this is entirely possible, it is so highly improbable that the Legislature will ever drop the appropriation for education to 12 million dollars, that this. possibility should for all practical purposes be discounted. EDUCATION-County Boards of Education (Unofficial) The Chairman of a county board of education has the power to cast a vote to make a tie on some issue before the board. Mr. H. E. Gellman October 30, 1953 I am pleased to acknowledge your request as to whether or not the Chairman of a County Board of Education can cast a vote to make a tie on somJe issue before the Board. Both the Constitution and the Code make the Chairman a member of the five-man Board. 334 The Constitution of Georgia (2-6801) provides in part as follows: "The Grand Jury of each c"ounty shall select from the citizens of their respective counties five free holders, who shall constitute the County Board of Education." Georgia Code 32-907 provides in part as follows: "The board of. education shall elect one of their number president, who shall serve as such during the term for which he was chosen a member o~ the board." Georgia Code 32-912 provides in part as follows: "Upon being called together by some one of their number, after their election, they shall organize by selecting a chairman." The terms "president" and "chairman" are synonymous. Robert's Rules ()f Order, Revised, Pages 191-192, in speaking of the right of a chairman of a committee to vote provides: "On a tie vote the motion is lost, and the chair, if a member of the assembly, may vote to make it a tie unless the vote is by ballot. The chair cannot, however, vote twice, first to make a tie and then give the casting vote." At page 238 it provides: "If a member of the assembly, he is entitled to vote when the vote is by ballot (but not after the tellers have commenced to count the ballots), and in all other cases where the vote would change the result. Thus, in a case where a two.-thirds vote is necessary, and his vote thrown with the minority would prevent the adoption of the question, he can cast his vote; so, also, he can vote with the minority w'hen it will produce a tie vote and thus cause the motion to fail; but he cannot vote twice, first to make a tie, and then to give the casting vote." (Emphasis supplied.) On thls authority, it is my opinion that the Chairman of a County Board of Education can cast a vote to make a tie on some issue before the Board. EDUCATION-Resignation of Member of Board of Education (Unofficial) A member of a county board of education may, prior to acceptance of his letter of resignation, legally revoke said letter. March 13, 1953 Honorable William W. Daniel You request that I give you an unofficial ruling relative to a member of your county board of education submitting a letter of resignation to the superintendent of schools and immediately thereafter, and before the superintendent of schools acted upon such resignation, requested that it be returned to him without acceptance. Section 32-906 of the 1933 Annotated Code of Georgia, codified from the general school law of 1919, page 322, provides, relating to resignations of county boards of education members: "When any member of a board, or a county superintendent of schools resigns, his resignation shall be tendered in writing to the State Superintendent of Schools." I would say, in general, that where a member of a county board of education tendered his resignation as provided by law to the State School Superintendent, and immediately recalled the same before the State School Superintendent had acted upon such resignation and the State School Superintendent acquiesced in such request and did not accept such resignation and returned the tendered resig- 335 nation, that such action on the part of said member of a county board of education would merely be a tender of his resignation which was never accepted by the State School Superintendent, and his right to hold his office would be the same as if he had never made such tender of resignation. EDUCATION-Merger of School Systems (Unofficial) No existing county school system could legally merge with an independent school system except by constitutional amendment or by following the present statutory procedure as provided by law. March 4, 1953 Mr. T. E. Hill This is in reply to your recent letter relative to a proposed agreement between the County Board of Education of Pulaski County and the City Board of Education of Hawkinsville whereby both boards desire to enter into a contractual relation as to how both systems would be operated pending the adoption of a constitutional amendment to crate one single system for the present existing two systems. It is my unofficial view that no existing county board of education and an independent school system could merge except either by following the present statutory procedure, as set forth in Sections 32-1201, 1202 and 1203 of the 1933 Annotated Code, or through the adoption of a constitutional amendment changing the existing systems. It is also my personal view that no legal contract or agreement could be entered into by either a county board of education or an independent school system whereby either system attempted to assume any of the powers of an administrative nature granted either board by statute. It is my further personal view that a county board of education could .not assume the operation of an independent school system pl!nding the adoption of a constitutional amendment or the procedure outlined in Sections 32-1201, 1202 and 1203 of the Code relative to merging of such systems. EDUCATION-Title to Property (Unofficial) Title to all local school property is vested in the County Board of Education. September 16, 1953 Honorable W. J. Whitehead You request my opinion as to who holds the title to all local school properties in Madison County. The County Board of Education is vested with title to all local school property. The Constitution of 1945 (2-6801) provides as follows: "Authority is granted to counties to establish and maintain p'ublic schools within their limits. Each county., exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education. . . . " The Georgia Code Annotated, Section 32-909 provides, in part, as follows: "The county boards of education shall have the power to purchase, lease, or rent school sites; build, repair or rent schoolhouses, purchase maps, globes, and school furniture, and make all arrangements necessary to the efficient operation of the schools. The said boards are invested with the title; care and custody of all 836 schoolhouses or other property, with power to control the same in such maner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the s~me in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the Qrder of the board... " (Emphasis added) It is my opinion that the case of Duffee v. Jones, 208 Ga. 639, 643 (1952), covers the question of title to school buildings built from a local bond issue. The court said in that case: "Pursuant to Article 8, Section 5, Paragraph 1 of the Constitution of 1945, the legislature passed an act, which was approved on February 1, 1946 (Ga. L. 1946, p. 206), abolishing all local school districts, in the several counties of this State, except independent school districts; merging them into one school district for each county; and providing for the management, operation, and control of them by the county board of education of each respective county. Nelms v. Stephens County School District, 201 Ga. 274 (39 S. E. 2d, 651). By the cited act of 1946, all property held in any capacity for school purposes by the trustees of any local school district passed by operation of law to and became vested in the county board of education. Board of Educ. of Paulding County v. Gray, 203 Ga. 583 (47 S. E. 2d, 508). Consequently, the former trustees of the abolished Vinings School District, a local school district, had no title of any character in or to the property in question at the time they attempted to convey it bW private sale to the trustees of the Vinings Methodist Church. In these circumsances it, of course, necessarily follows that their deed passed no title to the property; it was an act on their part which they were wholly unauthorized to perform." EDUCATION-Purchases by Echols County Board of Education (Unofficial) The local act relating to the County Board of Education of Echols County, properly construed, requires that all purchases made by said board, including purchases for the school lunch program, be made by bids. Honorable W. E. Anderson March 25, 19~ You request that I give you my opinion as to whether House Bill 38, enacted at the 1953-54 General Assembly, applies to the purchases of the school lunch program of Echols County. The Act in question, Georgia Laws 1953, Jan.-Feb. Sess., pages 2003-5, is a local bill applying to the County of Echols only. It is specific in providing that all purchases made by the County Board of Education of Echols County shall be done by public bidding after advertisement as provided therein. It also provides that such purchases shall be in such amounts as to fulfill the needs of the board for a thirty-day period, with exceptions for unforeseen emergencies, and provides a procedure to be used for such exceptions. It also provides that monthly reports shall be posted on the court house door showing all disbursements and receipts of the County Board of Education. The act carries a misdemeanor penalty for a violation of the provisions thereof. It would be my personal and unofficial view that this act would cover all of the activities of the County Board of Education of Echols County as provided therein, and would include the lunch room program, since the principal of the school is an employee of the County Board of Education subject to its directions 887 and control, and, as such, performs the duties connected with the school program as a function of the County Board of Education. EDUCATION-Duplicate Report Cards The Cobb County Board of Education, not being legally obligated to issue duplicate report cards, may legally charge a SOc fee for such service. August 6, 1958 Honorable M. D. Collins State Superintendent of Schools You request me to advise you whether a County Board of Education of Cobb County can legally impose a charge of fifty cents for the issuance of a duplicate report card. You state in your letter that the County Board of Cobb County has directed the school superintendent, principals, and teachers to make this charge. The laws applicable to the question posed by you are covered in titles and code sections 32-408, 612a, 373, 710, 901, 910, 912 (Supplement). Title 32 of the Code, Section 408 (Supplement) provides that the State Board of Education can make rules and regulations for the operation of the common schools and for the administration of the common school fund. Section 412 (Supplement) provides that the State Board of Education holds title to any equipment and/or supplies. Georgia Code Section 32-737 (Supplement) provides that admission to all common schools shall be gratuituous to all children between six and eighteen years (free tuition). Opinions of the Attorney General on this section, Volumes 1948-1949, page 110, 1939-1941, page 140 and 141. Georgia Code Section 32-710 (Supplement) states that the State Board of Education is directed to authorize and administer the system of free textbooks. The State Board also has authority to promulgate and enforce rules and regulations as may be necessary to effectuate this purpose. Georgia Code Section 32-909 (Supplement) states that the county boards of education have the power to make all arrangements necessary to efficient operation of schools. Georgia Code Section 32-910 (Supplement) states that the county boards of education have the power to pass on local issues. Georgia Code Section 912 (Supplement) states that the county board and superintendent have the power to make rules to govern the county schools in their respective counties. There is no law requiring the issuance of a report card to pupils enrolled in the common schools of this state. Issuance of a report card cannot be a prerequisite to admission under the Constitution or laws of Georgia. Thus we see that issuing report cards is wholly discretionary with the local boards of education as there is no regulation of the State Board of Education requiring them to do so. The State Board of Education has a regulation long accepted pertaining to free textbooks, that where a pupil loses or damages the free textbook, the county board can make the pupil pay for the loss or damage if the county board has a regulation to that effect (discretionary). Comparing the two situations, neither a county board nor the State Board of Education is required to furnish report cards to pupils. The Cobb County Board does so wholly within its discretion. This County Board has the regulation that pupils must pay for duplicate report cards. This it may legally do unless in doing so it abuses its discretion in which event the aggrieved person may appeal to the State Board. 338 EDUCATION-School Bonds (1) Funds derived from bonds sold for the purpose of building school houses within the county cannot be diverted to building school houses for an independent system. (2) Where a Board of Education sells bonds and fails to use the money for building schools specified in the election call, the county may legally re- . fund these bonds as provided by Sections 32-1418 and 32-1419. November 2, 1953 Dr. M. D. Collins State Superintendent of Schools 1. When a school board has floated bonds and in the advertisement specified that the bonds are being floated for purpose of building and maintaining county schools, does the county board legally have power to divert this fund to building schools for an independent system? 2. When the board sells bonds and fails to use the money in building county school buildings as specified in the call for election of such bonds, can the county refund these bonds legally and, if so, at what time? It is my understanding that these bonds were incurred under authority of Code Section 32-1403, which provides as follows: "Hereafter, when any county board of education shall deem it to the best interests of education in the county to incur any bonded debt for building, equipping or purchasing sites for the building and equipping of schoolhouses, pursuant to Article VII, Section VII, Paragraphs I and II of the Constitution of 1877, as amended in 1945, the election required shall be called and held in the manner prescribed by Chapter 87-2, and the bonds shall be validated in the manner provided by Chapter 87-3. The purpose of this section is to permit and require the same procedure to be followed in the voting, issuance, levying of taxes for, and the retirement of bonds issued by county boards of education for building and equipping schoolhouses, or purchasing sites therefor, as is required in the case of municipalities and other county bonds: Provided, however, that in such elections persons residing within territorial limits of independent school districts may not participate 'as qualified voters in said election, and should said election result favorably to the issuance of said bonds, the property located within the limits of an independent school district shall not be subject to taxation for the retirement of any bonds so issued." The Supreme Court of Georgia has set out the following holdings as to the use of school building funds: "When the proceeds of such bonds are turned over to the trustees of the school district, they become impressed in their hands with a trust for the erection of a school building or buildings by the district board of trustees in the district; and the district trustees are bound to faithfully execute this trust, and they will be liable for any breach thereof." Dodge C01unty Board of Education vs. Dykes, 171 Ga. 317 (1930) " ... as it appears from our statement of facts, the county board of education received from the trustees of the abolished school district in question the entire proceeds derived from a sale of the bonds which had been voted validated, issued, and sold for the specific purpose of building, repairing, and equipping a schoolhouse in that area of Paulding County embraced within the limits of Camp Ground Consolidated School District. It is elementary, of eourse, that the trustees of the district, had it not been abolished, could not have lawfully used these funds for any other purpose. Neither the Constitution of 1945 nor any statute passed pursuant thereto purports to give the board of education, after 389 receiving such funds, any right or authority to expend them for any purpose other than that for which they were voted. On the contrary, the plain provisions of the act under which the board has authority to take possession of these trust funds require it to expend them only for the purpose for which the bonds were voted ... " (Emphasis added) Board of Education of Paulding County v. Gray, 203 Ga. 583, 587 (1948). The Code specifically states that persons residing within independent school districts cannot vote in the bond election of the county, nor can their; property be taxed for the retirement of suoh bonds. Under the authority of the above cases, it is my opinion that funds derived from bonds sold for the purpose of building schoolhouses within the county cannot be diverted to building schoolhouses for an independent system. The authority for a county to refund schoolhouse bonds and the manner in which it is to proceed are set out in Code S'ection 32-1418, which provides as follows: "All counties in which a local tax is now or may hereafter be levied for school purposes, throughout the entire county, or throughout the entire county except that part embraced within the incorporated limits of a municipality or municipalities are hereby empowered to refund, refinance, or retire outstanding schoolhouse bonds of such territory in the same manner and under the same rules and regulations as provided in section 32-1409 et seq., except that in elections for said territory the manner of holding elections shall be as prescribed in sections 32-1419 to 32-1425, inclusive." The initial step taken to refund such schoolhouse bonds is set out in Code Section 32-1419, which provides as follows: "When one-fourth of the registered qualified voters of such territory shall file with the board of education of such county, petition asking for an election for the purpose of .determining wlhether or n.ot bonds shall be issued for the purpose of refunding, refinancing, or retiring outstanding school bonds of such territory, the required number of petitioners to be determined by said board of education, it shall be the duty of said )Joard of education to fix the amount, denomination, rate of interest, and dates when due, of the proposed bonds to refund, refinance or retire outstanding schoolhouse bonds of such territory, and the said board of education shall also specify the amount, denomination, rate of interest, and dates when due of the outstanding school bonds which are sought to be refunded, retired or refinanced and call such election in terms of law now provided or which may hereafter be provided for the county issue of bonds except as herein otherwise provided." Subsequent proceedings would then follow as indicated by the Code sections cited above. EDUCATION-Ownership of funds raised by the Senior Classes (Unofficial) Funds raised by a senior class for the purpose of defraying the costs of a school trip do not constitute school funds. October 23, 1953 Honorable W. M. Harry I am pleased to acknowledge your request as to whether funds raised by senior class for school trips belong to the school or to these classes. It is my <>pinion that they are definitely not part of the school fund. The normal sources of school funds are apportionment of state funds and local 340 taxation. Donations and gifts may be received, but in such cases it must be clear that the school fund is the recipient. The question of title to the various deposits would be controlled by common law principles and only the particular group or entity specified would be entitled to withdraw the funds. EDUCATION-Administration of School Funds (Unofficial) (1) The county school superintendent is legally responsible for the handling of local school funds. (2) County Boards of Education or other local school authorities are not legally authorized to collect any kind of fee from students who are residents of the local school district for the purpose of supplementing public school funds. (3) The various statutes defining the authority of the county superintendent of schools are cited. August 18, 1953 Honorable E. J. Huff, Superintendent Your request my opinion as to who is legally responsible for the handling of local school funds; whether fees are included in such a fund; and the authority of the county superintendent of schools in administering the White County School system. As to the liability for and distribution of funds, Code Section 32-941 provides as follows: "When the funds drawn under apportionment, and any funds raised by local taxation, are placed in the hands of any county superintendent of schools, he shall be liable on his official bond as treasurer for all amounts received, and shall disburse the same only upon the order of the county board of education, and the said county superintendent shall not be entitled to compensation for receiving any funds as herein provided." County boards of education or other local school authorities are not legally authorized to impose or collect any kind of fee from students who are residents of the local school district for the purpose of supplementing public school funds derived from taxation. The Constitution of 1945 (Code Section 2-6401) provides in part as follows: "The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation... " The Georgia Code Annotated, Section 32-937, provides: "Admission to all common schools shall be gratuitous to all children between the a.ges of six and 18 years residing in the districts in which the schools are located.. " There are numerous decisions of our appellate courts. on this point. See Moore vs. Brinson, 170 Ga. 680, and cases cited therein. Being illegal, such fees would not be a part of the local school fund. The county superintendent of schools is the official who is authorized to enforce the rules and instructions of the county board of education. As to the powers and duties of the county board of education, Code Section 32-912 provides in part as follows: "The county superintendent of schools and county board of education shall make rules to govern the county schools of their J,"espective counties. Upon being called together by some one of their number, after their election, they shall organize by selecting a chairman. The county superintendent of schools shall act as secretary of the board, and keep the minutes of their meetings and make a permanent record of the same, and do any other clerical work that they may direct him to do. . " As to the powers and duties of the county superintendent. of schools, Code Section 32-1009 provides in part as follows: " It shall be his duty to enforce all regulations, rules, and instructions o:l the State Superintendent of Schools and of the county board of education according to the laws of the State and the rules and regulation,s made by the said board of education that are not in conflict with the State laws; " EDUCATION-School Tax (Unofficial) (1) The constitutional limitation on millage for the support of education in Walker County may only be raised by local constitutional amendment. (2) The homestead exemption in Walker County may be abolished or reduced only by local constitutional amendment. August 11, 1953 Honorable Albert E. Campbell You request an opinion as to whether the constitutional limitation on millage :for the support and maintenance of education may be raised for the purpose of increasing teachers' salaries in Walker County. You also request an opinion as to whether homestead exemption may be abolished or reduced for the purpose of increasing teachers' salaries in Walker County. I am of the opinion. that your questions may be answered in the affirmative only if the legislation contemplated is in the form of a proposed constitutional amendment. There is quite a difference of legal opinion as to where the line may be drawn as far as local constitutional amendments are concerned, but it is my personal view that a local constitutional amendment would be sufficient for the purposes which you outline in your letter. EDUCATION-Sehool Taxes A county which contracts for the surveying and appraisal of taxable property may not pay any part of the cost of such services from the taxes levied :for school purposes. December 4, 1953 Honorable B. ;E. Thrasher, Jr. State Auditor I am pleased to acknowledge your request of December 3, 1953, as to whether Polk County school funds may be legally expended to pay one-third of the cost of surveying and appraising taxable property within Polk County. The counties are now given the express authority to enter into contracts for such a survey. Ga. Laws 1953, p. 189 amends Code 92-6910 and provides in part as follows: "The county boards of tax assessors in each county may, subject to the approval of the board of county commissioners, county commissioner or other governing authority of such county, enter into contracts with firms, individuals, or corporations :for the employment of such persons to assist the said .'Qoards in 342 the mapping, platting, cataloging, indexing and appraising of taxable properties in the county, and to make, subject to the approval of such boards of assessors, re-evaluations of taxable property and to search out and appraise unreturned properties in such counties, or to purchase such information from any municipality or political subdivision of the State of Georgia. The eXpense of such employees and said work shall be paid, subject to the contracts, first approved by the county governing authority, out of county funds as a part of the expense of the said boards." While the county has the authority to so contract, the county school funds can be only used for educational purposes and none other. Georgia Oode Annotated 39-942 provides in part as follows: "When said common school fund shall be received and receipted for, it shall be the duty of the officers authorized by law to receive such funds and keep the same separate and distinct from other funds, and said funds shall be used for educational purposes and none other, ... " In Burke v. Wheeler County, 54 Ga. App. 81 (1936) the County Commissioner employed a public accountant to audit the books of the county tax collector. The contract provided that the county was to pay one half of the cost and the other half to be paid by the County Board of Education. The Court held that this would be an illegal use of the county school fund by saying: " ... the county board of education could not legally make this kind of a contract; nor would a payment by it from the school funds of the county be binding. Public funds can not be expended unless such expenditure is authorized by law, and money belonging to the public-school funds can not be used for any other than s.chool purposes. This contract was illegal in so far as it undertook to obligate the county board of education to pay one half of plaintiff's compensation... There. is no authority in law for the county board of education to enter into a contract employing an accountant to audit the books of the tax-collector of the county. * * * * "The county board of education had no authority in this case to enter into a contract to employ an accountant to audit the books of the tax-collector of the county, and the public-school funds in its possession could not legally be paid to the plaintiff for the purpose of compensating him on his contract, even though the contract was binding Olli the county in so far as it had agreed to pay one/ half of the compensation for his services." (Underscoring ours.) On the basis of this authority, it is my opinion that Polk County school funds can not be legally expended to pay any part of the cost of surveying and appraising taxable property within Polk County. EDUCATION-Separate Schools (Unofficial) The constitutional provision requiring separate schools for the white and colored races applies only to public schools and does not affect proprietary schools. October 20, 1953 Hon. Earl E. Griffin, Jr. I am pleased to acknowledge your request of October 16th as to whether the Georgia constitutional requirement for separate schools for the white and colored races applies to proprietary schools that are not a part of the public school system. The Constitution of Georgia (1945), Article VIII, Section I, Paragraph I provides: "The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation. Separate schools shall be provided for the white and colored races." The above provision applies only to public schools. It does not apply to any private institution. EDUCATION-Minimum Age (Unofficial) Under the law, no child can be taught free in a public school unless he or she is between the ages of 6 and 18 years. May 14, 1953 Mr. Tassie Reid You request that I advise you relative to sending a child to public school before he is of school age. Section 32-937 of the 1933 Annotated Code of Georgia provides in part as follows: "Admission to all common schools shall be graduatious to all children between the ages of 6 and 18 years residing in the districts in which the schools are located." Under the above cited statutory authority, no child can be taught free in a public school unless he or she is between the ages of 6 and 18 years. The management of public schools of a county is confined to the county boards of education, and they have authority, subject to rules and regulations of the State Department of Education insofar as State funds are concerned; to promulgate such rules and regulations regarding the admission of children as they may deem to the best interest of the school system and community in the county in which the board has jurisdiction. EDUCATION-Release of Pupils During School Hours (Unofficial) The State Board of Education has the legal authority to establish regulations governing the release of school children during school hours. October 14, 1953 Honorable C. G. Milner You request my opinion as to whether the Georgia State Board of Education has the legal authority to establish regulations as to the release of school children during school hours. Georgia Code Annotated, Section 32-408, provides as follows: "The State Board of Education shall provide rules and regulations for the supervision of all public schools of this State; they shall provide a course of study for all common and high schools receiving State aid and may, in their discretion, approve additional courses of study set up by the local units of administration; provide for curriculum revisions and for the classification and certification of teachers. They shall make such rules and regulations as may be necessary for the op,eration of the common schools and for the administration of the common school fund." (Emphasis added) Clearly, this provision places statutory authority in the Board to establish regulations as to the release of' school children during school hours. 344 EDUCATION-TEACHERS' RETIREMENT SYSTEM-Compulsory Retirement Except as provided in the act of 1953 referred to, a member of the Teachers' Retirement System who has reached the age of retirement, and is receiving benefits thereunder, may not thereafter be paid a salary for public teaching in this state. May 20, 1953 Honorable M. D. Collins State Superintendent of Schools I am pleased to acknowledge your letter of May 15, 1953, in which you ask the following question: "I would appreciate your advising me as to whether or not a teacher, who has reached the retirement. age and is participating in. the Georgia Teacher Retirement Fund, is also eligible to receive a salary for teaching after he has retired from the State." The question you propound involves the compulsory retirement provisions of the Teachers' Retirement law, Section 32-2905 of the Annotated Code, Pocket Supplement, Subsection 1(b) of Section 5 thereof, as amended by the Acts of 1953, page 238. Your attention is called to my opinion of August 18, 1949, to Honorable J. L. Yaden, Secretary-Treasurer of the Teachers' Retirement System of Georgia (Opinions of the Attorney General1948-49, pages 532, 533). This opinion applies today, with the exception of the extension of time for compulsory retirement as provided in the 1953 amendment, which provides as follows: "However, in exceptional instances, where any county or independent board of education may deem it necessary for the efficient operation of its school system, it may, in its discretion, allow teacher members of the retirement system in its respective school system to remain in service for a period not to exceed three years from the date such teacher member of the retirement system attains the age of seventy years, and such teacher member of the system upon reaching the age of seventy-three shall be retired forthwith on service retirement allowance under the provisions of this Act." The above cited statute is clear in providing that a teacher in the public schools who has reached the compulsory retirement age of seventy could, by a county or independent board of education in its discretion, be allowed to continue as a teacher in such system until such teacher reached the age of seventy-three, whereupon the teacher must be retired forthwith from active service in such school system. It is my opinion that no county or independent board of education, or the State Department of Education, would be authorized to employ and pay a salary for teaching to any person who has attained the age of seventyj.three years, through the extension of the period of retirement age as provided under Subsection 1(b) of Section 5 above cited. 845 EDUCATION-Teachers' Retirement System (1) No teacher whose break in service exceeds four years is eligible for prior service credits under the Teachers' Retirement System by payment of a reinstatement fee. (2) A teacher who has already retired is no longer a member of the Teachers' Retirement System and may not, by payment of a reinstatement fee, become entitled to prior service credits. Honorable J. L. Yaden Executive Secretary-Treasurer Teachers' Retirement System of Georgia May 11, 1953 This will acknowledge receipt of your letter of April 1, 1953, in which you ask the following questions: "Case I. This member was teaching in Georgia from 1931 until December, 1943, at which time he entered the U. S. Armed Forces by way of the draft. He was discharged from the Army January, 1946 and re-entered the teaching profession on January 1, 1949. He was issued a Certificate of Membership and Prior Service on July 1, 1949 showing that he was not eligible for Prior service (service rendered prior to July 1, 1943). The question concerning him is can he qualify for Prior Service by paying a reinstatement fee as provided for under Senate Bill 86 passed by the General Assembly of 1953 (Ga. Laws 1953 Jan.-Feb. Sess., p. 270). "Case II. This person became a member in 1943 and received credit for Prior Service. He left the teaching profession on January 1, 1945 and entered the U. S. Civil Service for two years, and 6 months. He reentered the teaching profession July, 1947. He lost his Prior Service by failing to teach one full year in three consecutive years as required by the Retirement Law. The member in question retired September 1, 1940 and is on our Retirement Payroll, but his retirement allowance is based on his Membership Service (service rendered since January 1, 1945). The question is could this retired teacher reclaim his Prior Service by paying a reinstatement fee as provided for under Senate Bill 86." I am pleased to advise that relative to Case I, it is my opinion that under the facts enumerated the person involved could not qualify for Prior Service by paying a reinstatement fee as provided for under Senate Bill 86 (Georgia Laws 1953, page 270), for the reason of the limitation contained in the 1953 Act which provides: "If the total break in service does not exceed four years." The facts set forth in your Case I specifically state that the person involved ended his teaching in December, 1943, and that he re-entered the profession on January 1, 1949, a period of more than four years. Your attention is called to the provision that the Board of Trustees "may continue the membership of a member while in the Armed Forces of the United States or other emergency war-time service of the United States approved in advance by the Board of Trustees. . " I am verbally informed by you that your records do not disclose such advance approval. Relative to Case II, it is my view that Senate Bill 86 (Georgia Laws 1953, page 270) does not apply to a person who has retired and thereby ceased to be a member of the Teachers' Retirement System. 346 EDUCATION-TEACHERS' RETIREMENT SYSTEM-Beneficiaries Where a member who had properly executed a form for change of beneficiary and delivered said form to the superintendent, but said member died before delivery of the form to the Board of Trustees of the Retirement System, such change of beneficiary never became effective. Honorable J. L. Yaden Executive Secretary-Treasurer Teachers' Retirement System of Georgia June 2, 1953 I am pleased to acknowledge your letter of May 15, 1953, in which you request that I advise you relative to the following: "Mr. R. W. Lindsey designated his mother, Mrs. R. A. Lindsey, as his beneficiary at the time he joined the Retirement System on December 17, 1943. However, Mr. Lindsey completed Form 2C (Change of Beneficiary Form) and designated his wife, Bernice P. Lindsey, as his beneficiary (primary). Mr. Lindsey's signature was notarized by Mr. C. L. Hollomon on April 16, 1953. Mr. Lindsey passed away on April 30 from an apparent heart attack at the time of the cyclone at Warner Robins on April 30, 1953. Mr. Lindsey had filed his Form 2C with Mr. L. W. Tabor, Superintendent of Houston County Schools, prior to his death. We received Form 2C signed by Mr. Lindsey, as stated above, on May 1, 1953. "The question is: Was his mother or his wife the legal beneficiary at the time of his death?" I am further informed by you that the question propounded involves only the return of contributions. Return of contributions is controlled by the provisions of Section 32-2905 of the 1933 Annotated Code, under Subsection 7 thereof. The pertinent part applicable to the question under consideration provides as follows: "If a member dies, the amount of his accumulated contributions, with interest credits thereon, according to his length of service as in this subsection specified, shall be paid to the person, if any, nominated by him by written designation duly executed and filed with the Board of Trustees; otherwise, to the member's estate." You will note that the statute specifically provides that the "written designation duly executed" must be filed with the Board of Trustees. In the facts set forth in your letter you state that the written designation was not filed with the Board of Trustees prior to the date of the death of the member. Under the stated facts as given in your letter applied to the statutory provision above cited, I reach the conclusion that the beneficiary to receive the return of contributions would be the person named in the beneficiary form on file with the Board of Trustees of the Teachers' Retirement System, and if no person is named and filed with the Board of Trustees prior to the time of such Jtlember's death, that such contributions would be payable to the member's estate. 347 EDUCATION-Teachers' Retirement System Any member of the teachers' retirement system who is retired either on a service pension or a disability pension, and who is subsequently restored to membership after reaching the age of 50 years, may thereafter be retired on a pension which must notexceed in amount the surri of the pension he was receiving upon his first retirement and the pension payable in respect to his service rendered since his last restoration. August 4, 1953 Honorable J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia You request that I render an opinion on the following question: Does Section 32-2905 (6) (Supp.) of the Georgia Code apply to a member of the Retirement System of Georgia, who retired after the age of 50 and was subsequently restored to service, regardless of whether they have been retired on a disability or on a service pension? Georgia Code, Section 32-2901 (19) (Supp.) defines a beneficiary of the Teachers' Retirement System of Georgia as being any person in receipt of a pension, an annuity, a retirement allowance or other benefit as provided by that chapter. Georgia Code, Section 32-2905 (6) (Supp.) states, "If a beneficiary is restored to service and receives annual compensation of not less than his average final compensation, his retirement allowance shall cease, and he shall again become a member of the retirement system and contribute thereafter. Anything in this Chapter to the contrary notwithstanding, any prior service certificate on the basis of which his creditable service was computed at the time of his retirement shall be restored to full force and effect, and upon his subsequent retirement he shall be credited with all his service as a member, but should he be restored to service on or after the attainment of age 50 his pension, upon subsequent retirement shall not exceed the sum of the p,ension which he was receiving immediately prior to his last restoration to membership and the pension payable in respect to his service since his last restoration to membership." This section is construed as referring to all previously retired members who return to service whether they have been retired on a disability or on a service pension. It, therefore, seems quite clear that this section does apply to anyone restored to service after reaching the age of 50. I am exceedingly sorry that the consulting actuary and your office over estimated the amount of this member's pension upon his subsequent retirement. This inadvertence notwithstanding, the law is quite clear that upon restoration to service after age 50, his pension will be increased only by his contributions and the matching fund, from the date of his restoration to the date of his retirement, but not beyond the age of 65. 348" EDUCATION-TEACH~RS' RETIREMENT SYSTEM-Leave of Absence A teacher who terminated his employment as a teacher prior to the passag:e of the act creating the Teachers' Retirement System never became a member of such retirement system so as to be entitled to have his membership continued during the time such teacher was in the armed service. June 2, 1953 Honorable J. L. Yaden Executive Secretary-Treasurer Teachers' Retirement System of Georgia I am pleased to acknowledge your letter of May 28, 1953, in which you ask my advice as follows: "One of our members left the teaching profession in August, 1942 and entered the Armed Forces. She was discharged from the service in January, 1946 and returned to the teaching profession in the University System in September, 1949. "In your decision of ;May 11, 1953, you stated that a member must have his leave of absence approved in advance by the Board of Trustees. You will observe from the above facts that the teacher in question entered the Armed Forces in August, 1942 or approximately o:Q.e year before our Retirement Law was enacted (July 1, 1943). My question is-Did your decision of May 11 apply to the case outlined above?" Section 32-2903 of the 1933 Annotated Code, relating to membership in the Teachers' Retirement System specifically provides: "Notwithstanding the foregoing, the Board of Trustees may continue the membership of a member while in the armed forces of the United States or other emergency war time service of the United States approved in advance by the Board of Trustees . . . " The above provision is clear in providing that a person who is a member of the Teachers' Retirement System may continue his or her membership in said system provided that such person, before becoming a member of the armed forces or other emergency war time service of the United States, first obtains from the Board of Trustees of the Retirement System a continuance for such period. This grant of continuance by the Board of Trustees of the Teachers' Retirement System must be entered upon the minutes of the system at the time such continuance is accepted by a member of the system. From the facts that you state in your inquiry, it is apparent that the person involved never became a member of the system for the reason that such party left the teaching profession and entered the armed forces before the Teachers' Retirement Act was passed by the General Assembly of Georgia, and bec.ame a member only after returning to the teaching profession in September, 1949. It is my conclusion that the provision of Section 32-2903 above cited applies only to those members who were granted a continuance of membership by the Board of Trustees prior to the time of taking such leave, and that there is no provision providing for the Board of Trustees to make any of its grants of continuance retroactive. 8'49 EDUCATION-Employment of Teachers (1) A County Board of Education cannot legally elect a teacher who has not been recommended to said Board by the County School Superintendent. (2) In no event may a teacher be employed in the public schools unless such teacher holds a certificate from the State Board of Education. March 25, 1953 Dr. M.D. Collins State Superintendent of Schools "Can a county board of education legally elect a teacher without said teacher being recommended to the county board of education by the county superintendent of schools?" Section 32-604 of the Anot.ated Code which is codified from the Acts of 1949, pages 1406-1409, relating to local units of administration and contracts of professional personnel, provides in part: "In the local units of administration, the several teachers, principals and other school employees shall be elected by the board of education on the recommendation of the respective superintendents. Contracts for teachers, principals and other professional personnel shall be in writing, signed in duplicate by the teacher in his own behalf, and by the superintendent of schools on behalf of the board." This statutory provision is clear in providing that teachers in a local unit of administration (local school district) shall be elected by the county boards of education on the recommendation of the county superintendent of schools. Prior to the enactment of the above statutory provision, which is a part of the Minimum Foundation Program Act, the employment of teachers in the local school units was controlled by Section 32-913 of the Code, which was codified from the Acts of 1887, page 68; 1889, page 124; 160 Ga. 480 and which provided: "The county boards of education are empowered to employ teachers to serve in the schools under their jurisdiction, and the contracts for said service shall be in writing, signed jn duplicate by the teacher on his own behalf, and by the county superintendent of schools on behalf of the board." Section 32-913, above cited, was expressly repealed by the Minimum Foundation Program Act (Georgia Laws 1949, pages 1406-1420) and a new procedure for the employment of teachers was provided by what is found in the code as section 32-604. Section 32-605 of the Annotated Code provides in part: "No teacher ... shall be employed in the public schools unless such person shall hold a certificate from the State Board of Education, certifying to his or her qualifications as such teacher ... pursuant to the rules and regulations of the State Board of Education ... " Under this statutory provision, the county boards of education are restricted in employing teachers to those holding a certificate of qualification from the State Board of Education. It is my opinion that under the above cited authorities, county boards of education are limited in the employing of teachers to those persons holding a certificate of qualification from the State Board of Education and who are recommended by the county superintendent of schools of the county in which such teacher is to be employed. EDITOR'S NOTE: Sustaining point one of the above opinion, see Tripp v. Martin et al, 210 Ga. 284. 350 EDUCATION-Tort Liability of Teachers (Unofficial) 1. There are no state statutes protecting teachers against liability resulting from accidents that occur under their supervision. 2. The board of education may not legally reimburse teachers for judgments procured against them. 3. The board of education may not legally purchase liability insurance for its teachers. June 12, 1953 Mr. Anthony D'Ovidio You request that I advise you on the following questions: "1. What provisions does your state have for the protection of teachers against lawsuits resulting from accidents that occur under their supervision? "2. Can the board of education legally reimburse teachers for judgments brought against them? "3. Can the board of education legally purchase liability insurance for its teachers?" Relative to question No. 1, teachers are employees of county boards of education and are not employees of the state. There is no state statute protecting teachers against losses resulting from accidents that occur under their supervision. Our courts have held that in the operation of school buses for the transportation of teachers and pupils to and from public schools of this State, the county boards are acting in a governmental capacity, and, therefore, are not liable for any damages which may be sustained by any person as a result ~f such operation. See, McLeod v. Pulaski County, et al., 50 Ga. App. 356; Ayers v. Board of Education of Hart County, 56 Ga. App. 146; Roberts v. Baker, 57 G!il. App. 733. In all of the above cited authorities, you will find that a county cannot be sued on account of tort except by express legislative permission. The answers to questions Nos. 2 and 3 are in the negative. EDUCATION-Transportation of Pupils (Unofficial) The Constitution specifically authorizes counties and cities (and other political subdivisions) to contract with one another for the education, transportation and care of pupils whe:r:e authorized by law. Under the local act relating to the City of Social Circle, it would appear that such a contract could not be entered into. July 6, 1953 Honorable Clyde C. Pearce, Jr. You request my opinion as to whether the Board of Education of Walton County may contract with the City of Social Circle for the education, transportation, and care of pupils, in view of the provision in Georgia Laws 1905, page 515, Section 9, at page 517. As you have noted, the general authority to enter into such a contract is granted in Article VII, Section VI, Paragraph I and in Article VIII, Section IX, Paragraph I of the Georgia Constitution of 1945. The former (Code Section 2-5901) provides in part as follows: "The State, state institutions, any city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities 851 or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake." You will please note the words, "by law authorized to undertake." It could be said that your contract with Social Circle is not authorized by law because of Section 9 of Georgia Laws 1905, page 515 ("the authorities of the county of Walton shall not establish or maintain any other school within said City"). The possibility of litigation on such a close point of law could be avoided by enacting a local bill to amend the above section at the November session of 1;he General Assembly. EDUCATION-Contract Bid by Trustees (Unofficial) There is no law prohibiting a trustee of a local school from submitting bids on school building projects. August 18, 1953 Honorable J. K. Brookshire You request my opinion as to whether the trustee of a local school could legally submit a bid on a school building project sponsored through the State School Building Authority. Members of the county board of education are prohibited by law from selling supplies or equipment to any county board of education. Code Section 32-9908 provides as follows: "Any member of any county board of education violating the provisions of section 32-949, forbidding any member of a county board of education to sell to any county board of education any supplies or equipment used, consumed, or necessary in the operation of any public school, shall be guilty of a misdemeanor and, upon conviction shall be punished as for a misdemeanor." A trustee of a local school does not come within the above provision in that such a trustee acts only in an advisory capacity. Code Section 32-1105 provides as follows: "The duties of the school trustees appointed or elected by the county board of education, as aforesaid, shall be advisory in nature. They shall make recommendations to the county board of education as to budgets, employment of teachers, and other authorized employees, and as to other matters. Such recommendations shall be merely advisory and the county board of education is not bound to observe or follow the same ..." Therefore, it is my opinion that the trustee of a local school can legally submit bids on a local school building project and be awarded the contracts if his bids are the lowest. EDUCATION-V~ational Education Service Act The State Superintendent of Schools, in reorganizing the State Department of Education into three divisions, may legally place the Division of Vocational Education under the supervision of the assistant superintendent of one of the three divisions referred to, so long as the Division of Vocational Education Service exists within said division. Honorable M. D. Collins July 27, 1953 State Superintendent of Schools The 1952 Division of Vocational Education ~ervice Act, Georgia Laws, 1952, 352 p. 393, contains the following provisions: "Section 3. Establishment of Division of Vocational Education Service. There is hereby created within the State Department of Education a Vocational Education Service to carry out the purposes and administration of this act." "Section 5. Director of Division of Vocational Education Service. The State board shall employ, upon the recommendation of the Executive Officer, a Director of the Division of Vocational Education Service. The Director shall be responsible for administration, direction, and supervision of Vocational Education Service subject to approval of the Executive Officer and the State board." "Section 6. Duties of the Director. The Director shall: "(1) Recommend to the Executive Officer the employment of necessary personnel. "(2) Develop plans for vocational education and direct their execution when approved by the Executive Officer and the State board. "(3) With the- approval of the Executive Officer delegate authority to personnel of the Division of Vocational Education Service. "(4) With the approval of the Executive Officer and the State board establish appropriate administrative subdivisions of the Division of Vocational Education Service." In view of the above provisions, can the State Superintendent of Schools, in reorganizing the State Department of Education into three Divisions (Total Program Services, Total Internal Services and Special Services) with each Division headed by an Assistant Superintendent, place the Division of Vocational Education under the supervision of the Assistant Superintendent for Total Program Services ? Your proposed reorganization of the Department of Education will not conflict with Georgia Laws, 1952, p. 393, provided that there will be within the reorganized Department a Division of Vocational Education Service headed by a Director having the duties set out in Section 6' of the said Act. Such Division could be a part of the Total Program Service under the supervision of an Assistant Superintendent. ELECTIONS-Coroner-Special Election (Unofficial) The method to be employed in the calling of an election to fill a vacancy in the office of county coroner is discussed. Honorable Bethel Salter - June 5, 1953 This will acknowledge your request of June 5, 1953, as to what method is provided by law for filling a vacancy in the office of County Coroner. Section 21-101 of the 1933 Annotated Code of Georgia provides: "Coroners are elected, commissioned, qualified and removed as clerks of the superior courts are, and hold their offices for four years." Section 24-2704 of the 1933 Annotated Code, dealing with how vacancies in office of the clerk of the superior court are filled, provides: "If a vacancy occurs (or will shortly), the ordinary of the county where it happens shall give notice in one or more of the public newspapers of said county (if any), and at the courthouse and at three or more of the most public places of said county, 20 days previous to the day of the election, which shall be appointed by him." Section 24-2707 of the 1933 Annotated Code provides that as soon as a 853 vacancy occurs, the Ordinary can appoint some qualified person to discharge the duties of clerk until the vacancy is filled. So, when a vacancy occurs in the office of Coroner, the Ordinary of the county has the authority to appoint some person to fill the vacancy until an election can be held to elect a successor for the unexpired term in the office. See Code Section 23-701(5). ELECTIONS-Counting of Votes (Unofficial) In an election for city councilmen where three out of five candidates are to be elected, a voter is entitled to vote for either one, two, or three candidates, and the fact that he votes for only one does not invalidate his vote. October 19, 1953 Mr. James E. Tanner I am pleased to acknowledge your letter relative to a controversy which has arisen in your county concerning the forthcoming city election to be held on October 21, 1953, in which three City CoUillcilmen are to be elected. You state that there are five candidates for three positions and that the question which is puzzling the Democratic Executive Committee is whether or not a vote for only one candidate is valid. I call your attention to the case of GriffiUl v. Trapp, found in Volume 205 of the Georgia Reports, at page 176, in which the Supreme Court of Georgia held in part: "One of the most important and sacred rights possessed by an American citizen is to vote for whom he pleases, and to have that vote counted. It is so important and sacred that it is written into the fundamental law of our State in article II, section I, paragraph II of the Constitution (Code, Ann., 2-702), that 'Every citizen of this State who is a citizen of the United States, eighteen years old or upwards, not laboring under any of the disabilities named in this Article, and possessing the qualifications provided by it, shall be an elector and entitled to register and vote at any election by the people.' "In referring to this provision of the Constitution, this court, in Stewart v. C~rtwright, 156 Ga. 192, 197, said: 'The words "shall be an elector and entitled to register and vote at any election by the people," are unequivocal, and the entire provision amounts to a constitutional guaranty of the right of suffrage, which, though subject to reasonable regulation, can not be absolutely denied or taken away by legislative enactment. There can not be any doubt that a statute providing for an official ballot for use at a general public election, which prescribes the form to be of such character as will deny the voter his right to vote for whomsoever he pleases, would be violative of the above provision of the Constitution.' And in that case and in Adair v. McElreath, 167 Ga. 294, 314, this court has approved the doctrine that 'the legislature can not restrict an elector to voting for some one of the candidates whose n~mes have been printed upon the official ballot. He must be left free to vote for whom he pleases, and the Constitution has guaranteed to him this right.' "As pointed out above, we have been cited to no provision of the law which undertakes to require an elector to vote for a specified number of persons in order to be able to vote for one particular person for whom he chooses to vote for a particular office, "The Code, 34-1903, in making provision for official ballots to be used in primary elections, provides: 'On the ballot shall be printed such words as 354 will enable the voter to express his choice, such as "Vote for one," "Vote for two," and the like'; but there is no requirement there, or elsewhere, that the voter must vote for the total number of persons to be elected in order to have his vote for one particular candidate counted. On the contrary, this same Code seetion provides: 'and the voter or elector shall erase, mark out or cancel the name or names of the candidate or candidates for whom he does not wish to vote.' . " ... The requirements that the ballot carry the information, '"Vote for one," "Vote for two," and the like,' are for the information and benefit of the elector in exercising his free choice, and the right of the voter or elector to erase, mark out, or cancel the name or names of the candidates for whom he does not wish to vote is there recognized. The right to vote against some one is held as sacred by some as the right to vote for another, and the fact that an elector exercises both rights at the same time, where the opportunity to do so is afforded, would not render his ballot illegal, and prevent it from being counted. 29 C.J.S. 328, 227, declares the general rule to be, 'All votes cast in the manner specified by law by duly qualified voters must be counted.'" (Underscoring supplied) Your attention is further called to Section 34-1917 of the 1951 Annotated Code of Georgia, which provides, in part, with reference to the provisions of Section 34-1903: " ... The provisions of sections 34-1902 through 34-1912, shall, except those parts thereof which are in conflict with the provisions of this law, also apply in every county of this State and to all elections by the people including State and to all elections by the people including general, special, and primary elections. No action by any grand jury shall be necessary to make the same effective.'' ELECTIONS-Ordinary (Unofficial) Under the act of 1951 (Ga. Laws 1951, p. 130), providing for the calling of an election to fill a vacancy in the office of ordinary, a plurality of votes would decide such election. ~ay 11, 1958 Honorable William T. Dean You request that I advise you whether, under the Acts of 1951, page 180, which provides the procedure for calling an election to fill a vacancy in the office of Ordinary, a majority or plurality of votes decides the election. The Act of 1951, page 130, is an amendment to Section 24-1707 of the 1933 Annotated Code of Georgia. It is my unofficial and personal view that a plurality of votes decides such an election. ELECTIONS-Primary-Party Regulations (Unofficial) Political parties holding a primary for the nomination of public officers have authority to promulgate reasonable rules and regulations, some of which may require that a person voting in a primary shall, as a condition thereto, have paid all taxes due the municipality, and that such person shall have voted in a previous primary. May 14, 1958 Mr. Edward F. Perry You request that I advise you as to the legality of primary election rules and 355 regulations which prohibit a person from voting in a primary election who owes the municipality unpaid taxes and who has not voted in a previous primary. You cite the acts of the General Assembly of 1916, page 659, which is the charter of the T'own of Davisboro. Your attention is called to the fact that a primary is not an election as provided for in the charter of the Town of Davisboro above cited. The provisions of this charter relate to the election of municipal officers and not to a primary held by a political party. A primary is held for the purpose of nominating candidates to run in the election provided for in the charter which you mention in your letter. The political parties holding a primary for the nomination of officers have authority to promulgate any rule and regulation for the conduct of such primary so long as it does not conflict with any existing statutory laws relative to such primaries. ELECTION-Registration Closing Date (Unofficial) The last day for registration for voting in the general election to be held in 1954 is May 1, 1954. September 15, 1953 Mrs. Clarence E. Fisher I am pleased to acknowledge receipt of your letter relative to when registrations of voters will close in 1954. The general election in 1954, as provided by statute, will be held on November 2, 1954. Section 34-130 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Part) provides that the registration shall close six months prior to said election on November 2, 1954. Six months prior to said election date falls on May 2, 1954, which is a Sunday. Therefore, the last day for registration for the November 2, 1954, election would be midnight, May 1, 1954. There have been no major changes in the registration act since 1952. Under the present law those who voted in 1952 would not have to re-register in 1954 unless they had become disqualified as provided by law. Registrants, except as to men and women in the Armed Forces of the United States, must register in person and not by mail. ELECTIONS-Entrance Fees (Unofficial) There is no authority for the ordinary of a county to charge an entrance fee of a person desiring to become a candidate in a special election called to fill a vacancy in the office of the Tax Commissioner for an unexpired term. August 17, 1953 Honorable F. I. Williams You request that I advise you if a candidate seeking the office of tax com- missioner in a special election to fill a vacancy for an unexpired term can be required to pay an entrance fee prior to having his name appear on the ballot. Section 34-1904 of the 1933 Annotated Code of Georgia (Cumulative Pocket Part) provides, in part: "In all elections . . . , it shall be the duty of the ordinary to provide and furnish at the expense of the county, . . official ballots for all such elections 356 "The provisions of this section shall become .operative and effective uniformly throughout the State immediately upon its passage and approval, and do not require the approval or recommendation of any grand jury." Section 34-1917 of the 1933 Annotated Code of Georgia (Cumulative Pocket Part) provides: "This law [34-1914 to 34-1916], shall apply in every county of this State, and to all elections by the people, including State, district, county and municipal elections and including general, special and primary elections. The provisions of sections 34-1902 through 34-1912, providing for election supplies and equipment and the use and control thereof and for the management of elections, shall, except those parts thereof which are in conflict with the provisions of this law, also apply in every county of this State and to all elections by the people including State, district, county and municipal elections and including general, special, and primary elections. No action by any grand jury shall be necessary to make the same effective." (Underscoring supplied) Section 34-1902 of the 1933 Annotated Code of Georgia, relating to booths, arrangement, and supplies, provides: "Whenever any election, whether general, special or primary, State, County, municipal, city, town or village, or any election to determine any matter or question which is or may be referred to the vote of the people of the State, of a county, or of a city, town or village, or any election of any kind or character is to be held, it shall be the duty of the ordinary for each county at the expense of the county, or in a case of a purely municipal election, at the expense of the municipality, to provide at each polling place, a private room or rooms, a booth or booths, or any enclosure or enclosures, with such compartments therein as may be necessary to accommodate the persons qualified to vote at such polling places, and shall furnish each compartment with a shelf or table for the convenience of the electors in the preparation of their ballots. Each booth or compartment shall be so arranged that it will be impossible for one elector at a shelf or table in one compartment, or anyone else, to see an elector, at a shelf or table in another compartment in the act of marking his ballot. Each voting shelf or table shall be kept supplied with conveniences for marking the ballots. No person or persons, other than the voter himself w,hile occupying the booth or while in the immediate act of voting, shall come within 10 feet of said booth or booths while said polls are open. This section shall not apply to any of the officers in charge of holding said election." (Underscoring supplied) It is my unofficial view that, under the above authorities, there is no authority for an ordinary of a county to charge an entrance fee as a prerequisite to a person becoming a candidate in a special election to fill a vacancy in the office of tax commissioner for an unexpired term. 857 FORESTRY-Deposits (1) The Forestry Commission may require a deposit from all landowners requesting services of the Forestry Commission in marking and cruising timber according to good management practices, which deposit is to be conditioned upon the owner's following the recommendations of the commission. (2) The Forestry Commission may legally accept deeds for property upon which lookout towers and other improvements are to be placed, which deeds contain a reversionary clause conditioned upon the property no longer being used for forestry purposes, so long as such deeds also contain provisions permitting the removal by the state of all valuable structures and improvements thereon. July 22, 1953 Honorable Guyton DeLoach, Director State Forestry Comtmission You ask my opinion on the following questions: 1. The Georgia Forestry Commission has in the past advised land owners concerning timber management problems. If a cutting is needed, Forestry Commission personnel mark and cruise the timber. In approximately 50 per cent of such cases, land owners have not followed the recommendations of the Commission and have employed methods not recognized as good forestry practices or have had no intention of cutting their timber but have requested such services simply to secure an estimate of the amount of timber on their property. 2. The Forestry Commission has acquired sites for lookout towers by gift in many cases under deeds which provide for the removal by the Commission of all improvements placed on such property and which provide for revision to the grantor of such property whenever it has been permanently abandoned by the Commission for the purposes for which it was acquired. 1. Under the facts stated in the first paragraph above, would it be permissible for the Commission to require a land owner receiving the benefit of such services to make a cash deposit with the Commission as a bond or security supporting the promise of such landowner to cut his timber according to the marking and recommendations of the Commission, such deposit to be refunded by the Commission if the land owner cuts his timber in accordance with the Commission's recommendations within a prescribed time or forfeited by the land owner if he does not cut in such manner within the specified time? . 2. Under the facts stated in the second paragraph above, is it permissible for the Commission to erect structures of a permanent nature upon sites acquired under such deeds? ANSWERS TO QUESTION 1. There is no provision of law either expressly authorizing or expressly prohibiting the Commission's taking of cash deposits for the purposes stated in the first question. In cases where the law is silent, it is my opinion that the Commission is free to adopt administrative policies necessary aud proper to the performance of the duties and functions of the Commission so long as such policies do not offend other provisions of law or Constitutional principles. Should the Commission determine that the requiring of such deposits is necessary to secure the lawful objectives of the Commission in fostering and promoting the development of sound forestry practices in this state and should land owners, who have no vested right to such services, voluntarily contract for the services of the Commission under the conditions stated above, I see no reason why the same should not constitute an acceptable administrative practice. In the event 368 of forfeiture of such deposits, however, I am constrained to advise that the Commission should deposit such forfeitures into the general funds of the State Treasury inasmuch as there is no staute authorizing the Commission to retain and expend such funds. ANSWER TO QUESTION 2. In response to the second question presented, it is the policy of this office to disapprove the erection of permanent structures of any type upon sites acquired under deeds containing reversionary clauses. The underlying reason and purpose of this policy is patent. Any other policy would invite abuse anti open the way to needless litigation. Under the deed form annexed to your letter and under which the instant sites are acquired, however, the state is given the right to erect structures or improvements on the property and to remove same at any time. Under such a conveyance, it would be permissible to erect temporary or removable structures since such improvements could be removed without substantial damage or loss to the state and would not constitute an unjust enrichment or benefit to the grantor in the event of revision as would occur if permanent installations were placed thereon. As a general rule, structures which may, as a practical matter, be removed from the premises as a unit or dismantled and removed with substantial salvage value and negligible loss or damage may be considered temporary or removable structures within the meaning herein ascribed. Of course, each individual case must be weighed on its own merits, but in no event will an improvement be deemed to be approved when there is the possibility of any practical injury by virtue of the irremovability of such improvement. FORESTRY-Cooperation With Other Departments The State Forestry Commission may legally enter into cooperative agreements with the Director of Entomology for the control, eradication and prevention of insect pests and plant diseases affecting forests, with the expenses shared by these two departments. Honorable Guyton DeLoach, Director State Forestry Commission November 3, 1953 I acknowledge with pleasure your recent inquiry regarding the authority of the State Director of Entomology to cooperate with the State Forestry Commission in the control, eradication and prevention of insect pests and plant disseases affecting forests. The State Director of Entomology is, of course, charged with the primary responsibility for protecting the agricultural, horticultural, and other interests of the state from insect pests and plant diseases. Entomology Act of 1937, Section 4, Acts 1937, pp. 659, 662-667 (Codified, Georgia Code Annotated, Sections 5-706 to 5-725); however, it is provided in paragraph 11 of Section 4 of the Entomology Act of 1937, Id., pp. 659, 665 (Codified, Georgia Code Annotated, Section 5-720, that the Director of Entomology is vested with the power and authority to: "Enter into cooperative arrangements with any person, municipality, county or other departments of this State, and boards, officers and authorities of other States and of the United States for inspection with reference to insect pests and plant diseases and for the control and eradication thereof and to contribute a just proportionate share of the expenses incurred under such arrangements.'' 359 It is, therefore, my opinion that ample authority exists for cooperative ar~ rangements between the Director of Entomology and the State Forestry Com~ mission for the control, eradication, and prevention of insect pests and plant diseases affecting forests, with the expenses of such cooperative activity de~ frayed by proportionate contributions from the two departments. FORESTRY-Forest Fire Towers The Georgia Forestry Commission may legally expend state money to construct forest fire outlook towers on land acquired by the execution of a deed containing clauses providing for the reversion of the land upon its being no longer used for forest fire protection activities, so long as such deed allows the state, after abandonment, to remove all improvements placed thereon. Mr. George Bishop Assistant Director Administration Georgia Forestry Commission May 1, 1953 You request that I advise you as to whether or not it would be legal for the Georgia Forestry Commission to expend State money to construct forest fire lookout towers on land acquired by the execution of a deed which contains the following clause: "It is further understood and agreed that the party of the second part will erect on the above described property such structures of improvements as are necessary and incident to its forest fire protection activities. The party of the second part, its successors and assigns shall have the right to remove said structures or improvements at any time, and whenever the party of the second part shall definitely and permanently abandon the above described property for the purposes for which it was acquired and no longer desires to use it then it shall revert to the party of the first part, his heirs, successors or assigns." Under the above cited provisions of the proposed deed, the Georgia Forestry Commission would clearly have the right to remove any forest fire lookout towers which they had placed upon any lands acquired under such proposed deed, although the land itself, upon a definite and permanent abandonment for the purposes of forest fire protection, would revert to the grantor. In view of the fact that the State could not suffer any damage or loss. and would have the right to remove such forest fire lookout towers, it would be my opinion that the Georgia Forestry Commission would be authorized to expend State money to construct forest fire lookout towers on land acquired by the execution ef a deed containing the above cited provisions. FORESTRY-Liability of State The State of Georgia would not be liable to a newspaper reporter or photographer who accompanies planes being used by the Forestry Depart~ ment on routine patrols, in the event of an accident. December 2, 1953 Honorable Guyton DeLoach, Director Georgia Forestry Commission You request my opinion as to the liability of the State to newspaper reporters and photographers who accompany your planes while on routine patrols, as 360 follows: 1. Would the State be liable in case of an accident in the State owned plane? 2. Would the State be liable in case of an accident in a plane undetr contract to us on an hou~ly basis? 3. If the State would be liable in either case, could a waiver be drawn up, to be signed by the reporter, relieving the State of responsibility? Generally, the State of Georgia cannot be held accountable for any damages or loss occurring or sustained to other than its employees, as provided under the Workmen's Compensation law, in any governmental function. This has been true ever since Ex Parte Ayers, 123 U. S. 444, 31 L. ed. 216, which case has been followed in Pennoyer, et al. v. McConaughy, 140 U. S. 1, 35 L. ed. 366; New Hampshire v. Louisiana and New York v. Louisiana, 108 U. S. 77, and various other cases. See, also, Hans v. Louisiana, 134 U. S. 1, 33 L. ed. 846. The only claims for which the state in its sovereign power can be held accountable or be sued to recover are those cases in which the state consents to be sued. Without going into a complete and thorough discussion of the question, it might be suggested that there might under certain facts be some personal liability incurred by your pilot or the concern with which you contract to furnish the plane for any negligence on their part, as a result of which a newspaper reporter or photographer might sustain injury or loss of life. The relationship between your pilot or contractor and a newspaper man who might request the privilege of accompanying them on these trips would seem to me to be only as a licensee, in which case Section 105-402 of the Code of Georgia of 1933 would apply as to the extent of diligence due the newsman, which section is as follows: "A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual reiation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification. The owner of such premises is liable to a licensee only for wilful or wanton injury." A person cannot under the Georgia law waive his rights as to injury or loss sustained by negligence. However, a waiver might be procured from such newsman as might desire to accompany your planes on these trips, as set out in your letter which would clarify his relationship and the diligence due him. FORESTRY-Agreements for Production for Seedlings The Director of the State Forestry Commission, with the approval of the Commission, is empowered to enter into agreements with private companies for the production of seedling pines for the latter. May 26, 1953 Honorable Guyton DeLoach Director, State Forestry Commission You inquire if the State Forestry Commission can enter into agreements with private companies to produce seedling pines for such companies. Section 43-219 of the Georgia Code, Annotated, gives the Director of the Forestry Commission, with the approval of the Commission, the power to adopt rules and regulations and methods of administration necessary for the efficient operation of the activities of the Commission. 361 Section 43-224 of the Annotated Code of Georgia authorizes the Commission to receive gifts or donations made to it and to expend the same under the terms of such gifts or donations. Section 43-228 of the Annotated Code of Georgia gives the Director, with the approval of the Commission, the power to establish and from time to time alter rules and regulations governing the use, occupancy and protection of the land and property under its control. It is readily seen from these Code Sections that the Director, with the approval of the Commisison, is given broad powers to promulgate rules and regulations and methods which will most efficiently carry on the activities of the Forestry Commission and make best use of the land under its control. These broad powers were given by the Legislature so that the Commission could operate efficiently and effectively for the best interest of all the aspects and phases of forestry in this State. Nowhere in Chapter 43-2, which establishes the State Forestry Commission, is there an agreement such as that proposed by the Director prohibited, but on the other hand, as can be seen by the above cited Code Sections, the Commission may adopt methods which in their opinion will best serve the interests of forestry. It is the opinion of the Director of the Forestry Co,mmission that the best interests of reforestation would be served if the State grew seedling pines for sale to private industries rather than for such industries to operate their own nurseries. Therefore an agreement whereby the private industries would furnish the seeds and expenses and the State furnish the land, labor and equipment would be valid, for after all, it is the purpose of the Forestry Commission to promote the best interests of reforestation. Such an agreement might be made on the basis of a gift as provided for in Section 43-224 of the Geprgia Code Annotated. In that case the private in- dustries would give to the State Forestry Commission the seed for planting and money to cover the costs of raising the seedlings and the Commission in consider- ation for such gifts would agree to raise seedlings to sell to the private industries making the gifts. FRANKLIN D. ROOSEVELT WARM SPRINGS MEMORIAL COMMISSIONLiability Insurance The Franklin D. Roosevelt Warm Springs Memorial Commission, being an agency of the state, may not obtain liability insurance insuring the public against torts of its officers, agents or employees. Mr. J. E. Smener, Secretary-Treasurer Franklin D. Roosevelt Warm Springs Memorial Commission October 5, 1953 You request that I advise you if the Franklin D. Roosevelt Warm Springs Memorial Commission should carry property damage and personal liability insurance on two trucks owned and operated by the commission. Your attention is called to an opinion by me to Honorable Lee S. Trimble, former Secretary-Treasurer of your Commission, dated August 25, 1947, and found in the OPINIONS OF THE ATTORNEY GENERAL 1945-1947, at page 550, in which I held: "The F. D. R. Warm Springs Memorial Commission may not obtain public 362 liability insurance as it is an agency of the state and not liable for its torts." " . . . Since the state is not liable to suit without its consent, and is not liable for the torts of its officers, agents and employees, unless made so by law, there does not appear to be any legal duty resting on the state to insure its operations for protection of others. In Ramsey v. Hamilton, 181 Ga. 365, it is held that the state cannot be sued without its consent. In Tounsel v. State Highway Department, 180 Ga. 112, the court holds that the state is not liable for torts unless made so by statute." .FUGITIVES FROM JUSTICE-Arrests (Unofficial) Prior to the issuance of, a requisition for extradition, an officer of this state is not authorized to make an :;rrest under a warrant issued by an inferior court of another state. February 13, 1953 Honorable W. C. Broach This will acknowledge receipt of your letter with reference to the request from the Sheriff of Tallapoosa County, Alabama for the arrest of I. J. Chappell charged with desertion and abandonment of family in said State and County. You would not be authorized under the Uniform Criminal Extradition Act to arrest Mr. Chappell on the warrant issued by the Honorable C. J. Coley, Judge of the County Court of Tallapoosa County, Alabama and the affidavit of Mrs. Jessie Belle Wilder made before Judge Coley. Arrest prior to requisition for extradition may be made under the Uniform Criminal Extradition Act, codified as Chapter 44-4 of the Code of Georgia of 1933, Annotated Pocket Part, by a compliance with Section 44-413, and a warrant issued as provided therein by a Judge or Magistrate of this State, or demand for extradition may be made to the Governor as provided under Section 44-404, and a warrant will be issued by him if he decides that the demand should be complied with, as provided under Section 44-408. Under Section 44-414 of the Code, the Uniform Criminal Extradition Act does make provision for the arrest of a fugitive from justice without warrant upon reasonable information that the accused stands charged in the courts of another State with a crime punishable by death or imprisonment for a term exceeding one year. Title 14, Section 437, paragraph 8 of the Alabama Code, which is a part of the Vagrancy Law, gives one definition of a vagrant as: "An able bodied person who shall abandon his wife and child, or either of them, without just cause, leaving her or them without sufficient things or sustenance or in danger of becoming a public charge." Vagrancy is by law made a crime in Alabama and any person convicted therefor shall be fined not more than $500.00 or may be sentenced to hard labor for the County for not more than twelve months. Therefore, Mr. Chappell could not be arrested without a warrant under the provisions of Section 44-414 of the Georgia Code. I am returning to you herewith the warrant issued by Judge Coley, the affidavit of Mrs. Wilder, the unexecuted bond for $300.00 and the note to you from Sheriff Woodrow H. Barnes, which you enclosed with your letter to me. 363 FUGITIVES FROM JUSTICE-Sheriffs' Fees (Unofficial) The state is not authorized to pay the expenses of peace officers in extradition proceedings unless the crime involved is a felony; such fees and expenses should be paid by county authorities. March 11, 1953 Honorable A. Ben Connor Yesterday I was called on by the Governor to advise him whether or not the State Treasurer would be legally authorized to pay your expense bill in the Henderson Barger Extradition case. You will receive a copy of my opinion from the Governor in which I held that under the Uniform Extradition Act (Acts 1951, pp. 726-737) no payments for such expense accounts by the state would be legal unless the crime involved was a felony and the extradition was protested. It appears from your bill that neither of these conditions prevailed in the subject case. It was, therefore, necessary for me to rule that the treasurer would not be authorized to pay the same. For your information, I suggest that you file this bill with the proper county authorities since it would be legal for them to pay it. I am sure the county attorney will agree with me on this legal question. He will remember that prior to the adoption of the Uniform Extradition Act such accounts were paid by the county. GAME AND FISH-Nonresident Fishing Licenses The Director of the Game and Fish Department is without authority to enter into agreements with other states whereby residents of such other states could procure resident fishing licenses of this state for fishing in waters adjoining this state and such other states. Honorable Fulton Lovell, Director June 11, 1953 State Game and Fish Commission QUESTION: Is the Director of the State Game and Fish Commission authorized and empowered to make and enter into agreements with the proper authorities of adjoining States whereby residents of each State may secure from the proper authorities of the other State a resident license and such pond permits, if any, as are required by such State of its own residents in lieu of a non-resident license and pond permit, where required, to cover the taking of fish from the waters of lakes, rivers, and streams lying between the State of Georgia and such adjoining State, or partly within the State of Georgia and the adjoining State? ANSWER: It is my opinion that the Director of the State Game and Fish Commission is not authorized to enter into agreements under which residents of adjoining states would have issued to them by the State of Georgia resident fishing licenses to cover fishing from the banks and in the waters on the Georgia side of lakes, rivers and streams lying between Georgia and such adjoining state, or partly within the boundaries of both the State of Georgia and such adjoining state, and residents of Georgia would have issued to them by such adjoining state a resident fishing license and such pond permits, if any, as its own residents are required to obtain. Section 45-237 of the Georgia Code Annotated provides, in part, that: "A license authorizing a resident of this State to hunt and fish throughout 364 this State shall be issued upon the payment of a fee of $1.25 anually: Provided, that, before any person shall be entitled to purchase a resident hunting and fishing license, he shall have been a bollia fide. resident of the State of Georgia for a period of six months prior to the date such license is applied for: * * *" (Emphasis added) Section 45-222 of the Georgia Code Annotated, Pocket Supplement, provides that: "Each nonresident of this State who desires to exercise the privilege of fishing in any of the waters of this State shall obtain from the Director of Game and Fish Commission a license and pay therefor a license fee in the same amount as the State in which such nonresident of Georgia resides charges for a nonresident fishing license, and such license shall bear the date of April 1 of the year in which issued and shall expire on March 31 of the following year: Provided, that nonresidents may purchase daily permits to fish within the waters of the State of Georgia open to fishing upon exhibiting a current fishing license issued by the State of his residence and upon the payment of the sum of one dollar for each day for which a permit is desired. In the event the State in which a nonresident applicant resides has no provision for a fixed nonresident fishing license fee, then such applicant shall be charged the sum of $5.25 for a nonresident fishing license." Recognizing the obvious difficulty in administering and enforcing licensing laws and regulations of two States over a single lake, river or stream and the equally obvious inequities that result therefrom, the State Legislature provided in House Bill Number 716, approved February 15, 1952, (Georgia Laws 1952, pp. 389, 390), that: "Section 1. The Director of the State Game and Fish Commission is hereby authorized and empowered to make and enter into agreements, from time to time, with the proper authorities of the States of Alabama, Florida, North Carolina, South Carolina and Tennessee whereby a valid fishing license issued by the State of Georgia will be accepted and honored, as and in lieu of a fishing license for the respective States so agreeing, for fishing on the banks and in the waters of lakes, rivers and streams lying between the State of Georgia and such adjoining State or partly within the boundaries of both the State of Georgia and the adjoining State, and valid licenses issued by the respective States so agreeing shall be accepted and honored, as and in lieu of a Georgia fishing license, for fishing upon said lakes, rivers and streams." The foregoing statute repealed the earlier provisions of the Georgia Code only to the extent that it was in direct conflict with them. Reading and conconsidering all of the :foregoing statutes together, it appears to me to be clear and unmistakable that nonresidents of the State of Georgia who desire to exercise the privilege of fishing in this State from the banks or on the waters of the lakes, rivers and streams forming the boundaries of, or lying partly within the State, must have applied for and obtained a nonresident license or a daily permit under and in accordance with provisions of Section 45-222 of the Georgia Code Annotated, Pocket Supplement, except where he is a bona fide resident of and the holder of a license issued by a State with which the Director has negotiated and secured the approval of an agreement providing for the recognition and acceptance by each of the States which is a party thereto of a valid fishing license issued by the other in lieu of any license required and issued by it to its own residents. 865 GAME AND FISH-Sale of Rabbits The act of 1953 referred to does not prohibit the sale of rabbits or hares which are taken or killed in any place other than this State. December 22, 1953 Honorable Fulton Lovell, Director State Game and Fish Commission Pursuant to your request of December 21, 1953, I have studied House Bill No. 606, Act 509 of the General Assembly of Georgia, passed at its NovemberDecember 1953 Session (Ga. Laws 1953, Nov.-Dec. Sess., p. 1). This act in my opinion seeks to control the taking and killing of rabbits or hares in this State and limits the season in which the same may be taken. It further places a daily bag limit of five (5) rabbits or hares per person and makes it unlawful for such person taking or killing these rabbits from selling them or parts of them. It provides that for violation of the provisions of the act, such persons shall be punished as for a misdemeanor. Under Section 3a of the act it is further provided that the provisions thereof shall not apply to persons who raise rabbits and kill them for the purpose of resale. There is no distinction provided in said act between "wild" or other rabbits or hares and there appears to be no prohibition against the sale of rabbits or hares other than those so taken or killed in this state as allowed by the p~ visions of the act. GAME AND FISH-Tidewater Counties The legislature may constitutionally create a new department of this state to administer the game and fish laws in the tidewater counties area. June 16, 1953 Honorable Fulton Lovell, Director Game and Fish Commission Reference is made to your letter of June 11, 1953, in which you call attention to a resolution passed by the General Assembly of Georgia in 1953 (H. R. No. 110-337n, Acts of 1953, January-February Session, page 231), providing for the appointment of a commission to consist of nine members to study the advisability of creating a new department of this State to administer and enforce game and fish laws of the State in the tidewater counties area. QUESTION: You inquire whether legislation creating such a department would be constitutional. ANSWER: The Constitution of the State of Georgia of 1945 provides in Article V, Section IV, Paragraph I (Ga. Code Ann., Section 2-3301) that: "There is hereby created a State Game and Fish Commission. Said Commisc sion shall consist of one member from each Congressional District in this State, and one additional member from one of the following named counties, to-wit: Chatham, Bryan, Liberty, Mcintosh, Glynn, or Camden.... "The Commission shall have such powers, authority, duties, and shall receive such compensation and expenses as may be delegated or provided for by the General Assembly." (Emphasis added.) The General Assembly by an Act approved February 8, 1943 and amended by an Act approved March 9, 1945 (Ga. Code Ann., Section 45-139, Pocket 366 Supplement) created the State Game and Fish Commission as provided for in the Constitution and delegated to it powers as follows: "The control, management, restoration, conservation and regulation of the birds, game, wild life, furbearing animals, fresh-water fish, salt-water fish, shellfish and crustaceans, and the acquisition, establishment, control and management of hatcheries, sanctuaries, refuges, reservations, and all other property now or hereafter owned or used for such purposes by the State of Georgia shall be vested in the State Game and Fish Commission." Since the Commission was created under the provisions of the State Constitution, it quite obviously can not be abolished except by amendment to such Constitution. By the same token, however, since the authority and duties of the Commission were delegated to it by the General Assembly as provided for in the Constitution, such duties may be added to or taken from by and at the will of the General Assembly. GENERAL ASSEMBLY-Public Offices The governor may legally appoint a member of the General Assembly to serve as a member of the State Bridgebuilding Authority, the State Toll Bridge Authority, and the Livestock Development Authority, as membership in none of the latter constitutes public office. Honorable Herman E. Talmadge Governor of Georgia February 24, 1953 You request my opinion as to whether a member of the General Assembly may be appointed to membership on the State Bridge Building Authority, the State Toll Bridge Authority, and the Livestock Development Authority. This opinion is predicated on the assumption that the three acts creating these three authorities will be passed and approved. For the purposes of determining the answer to your question, we may state that the three authorities referred to above are the same as the State School Building Authority which was created by the General Assembly in 1951. (Georgia Laws 1951, page 241.) Pursuant to an opinion from me stating that you were authorized to do so, you appointed Honorable Fred Hand, Speaker of the House of Representatives, to membership on that authority, and the legality of that appointment was upheld by the Supreme Court in the case of Sheffield v. State School Building Authority, 208 Ga. 575. The court in that case stated, beginning on page 583, as follows: "Finally, the intervention alleges that the Authority created by the acts has not been legally organized and, hence, that all of its actions are illegal. This complaint is based upon the fact that the Governor appointed Honorable Fred Hand, the Speaker of the House of Representatives, as one of the three members which the law empowers the Governor to appoint, and that Mr. Hand was a member of the General Assembly which enacted the law creating the office, and his appointment was made during the term in which the office was created, thus offending the Constitution (Code, Ann., 2-1606). The clause of the Constitution relied upon forbids the appointment to an office having any emolument annexed thereto of a member of the General Assembly without his first resigning from the Assembly, or to any civil office created during his term in the legislature. Since the act expressly declares that the members shall receive no compensation for their services, the office is not one having any emolument annexed 367 thereto, and therefore is not included in the first constitutional inhibition. It remains to be determined whether or not the office is a civil office in contemplation of the Constitution. There are numerous decisions from other jurisdictions defining the term 'civil office.' See 7 Words & Phrases, p. 326;; 42 Am. Jur. 932, 66. And for a rather general discussion concerning the term 'civil office,' see McWilliams v. Neal, 130 Ga. 733 (61 S. E. 721); Morgan v. Crow, 183 Ga. 147 (173 S. E. 840). To be a civil office, there must be governmental functions that are not military to be performed. This act declares in section 21 that the corporate purpose of the Authority is to benefit the people of the State, and that the purpose is a public one, and that the Authority will be performing an essential governmental function in the exercise of the powers conferred upon it by the act. We are not precluded by this legislative interpretation of its own act. McCutcheon v. Smith, 199 Ga. 685 (35 S. E. 2d, 144). In State of Georgia v. Regents of the University System, supra, this court held that the Board of Regents was not the State, was not a part of the State, and was not an agency of the State. The Authority here stands on a par with the Board of Regents. And the membership to which Speaker Hand was appointed does not involve governmental functions. It is simply a plan whereby the authority provides school buildings which the school authorities, in the performance of governmental functions, may by lease contract secure for the use of the public schools. We therefore hold that the appointment of Speaker Hand was not to a civil office as contemplated by the Constitution, and his appointment thereto does not offend the Constitution (Code, Ann., 2-1606) as contended.'' It seems clear that you will be authorized to appoint a member of the General Assembly to membership on any of the three above named Authorities. GENERAL ASSEMBLY-Compensation of Interim Committees Members of interim committees are entitled to receive as compensation the sum of not more than $20.00 per day. March 27, 1953 Honorable George B. Hamilton State Treasurer You request my opinion as to the compensation which members of certain stay-over committees of the General Assembly should receive. The committees to which you refer are authorized to remain a certain number of days after the adjournment by House Resolution No. 206 and Senate Resolution No. 57. These two resolutions were approved only by the House and the Senate respectively. The General Appropriations Act of 1953 (Georgia Laws 1953, page 151) provides in Section 1 for per diem and allowance and additional maintenance expense allowance for members of the General Assembly during the session, all of which totals $30.00 per day. The last sentence of Section 1 reads as follows: Provided, however, that a Member of the General Assembly serving as a member of a regular or special committee shall be paid a per diem allowance for the foregoing stipulated purposes, of only five dollars for each day of service on said committee, when the General Assembly is not in session and said five dollars per diem shall be in addition to the regular per diem and allowance heretofore authorized by law.'' This proviso makes a distinct difference between service during a session of the General Assembly and service while the General Assembly is not in 368 session. It also states that the rate of compensation set out in the proviso applied to members of regular committees as well as special committees. The General Assembly is not now in session and adjourned February 25, 1953. The regular per diem and allowance heretofore authorized by Jaw is $15.00 and the additional $5.00 set out in the proviso makes a total of $20.00 per day, and it is my opinion that the members of the stay-over committees referred to in the two resolutions heretofore designated should receive that sum for any service performed by them after the General Assembly adjourned on February 25, 1953. GENERAL ASSEMBLY-Governor's Time in Signing Bills Where by resolution the 1953 General Assembly split its session so as to adjourn on February 25 until November 16, this action constituted an "adjournment" in the technical sense of the term, so that the Governor has 30 days from February 25 (the date of adjournment for the first half of the session) in which to act on bills awaiting approval at that time. February 23, 1955 Honorable Herman E. Talmadge Governor of Georgia You have asked my opinion as to the time allowed by the Constitution for the action by you upon bills remaining unsigned when the Legislature concludes the present portion of its biennial session. By Resolution Number H. R. 174 the Legislature has split its current session and will adjourn on February 25 until the 16th day of November, 1953. Article V, Section I, Paragraph XV of the Constitution of 1945 deals with the Governor's veto power. This portion of the Constitution was amended at the last general election by the adoption of a resolution approved February 15, 1952, Georgia Laws 1952, page 522. This portion of the Constitution now reads as follows: "The Governor shall have the revision of all bills passed by the General Assembly before the same shall become laws, but two thirds of each house may pass a law notwithstanding his dissent; and if any bill should not be returned by the Governor within five days (Sundays excepted) after it has been presented to him, the same shall be a law; unless the General Assembly, by their adjournment, shall prevent its return, in which event the Governor shall have thirty days (Sundays excepted) from the date of adjournment in which to approve the same, and if not approved within that time, the same shall not become a law. He may approve any appropriation, and disapprove any other appropriation, in the same bill, and the latter shall not be effectual, unless passed by two thirds of each House." It is my opinion that you have thirty days from February 25 in which to approve or disapprove bills passed at this portion of the session if the resolution of adjournment (H. R. 174) may be said to accomplish an "adjournment" of the General Assembly within the meaning of Article V, Section I, Paragraph XV of the Constitution. More specifically, the answer to your question depends upon whether or not an adjournment to a day certain is an "adjournment" or merely a recess. If it is merely a recess, then the thirty days allowed by the Constitution is applicable only to bills remaining unsigned after an adjournment sine die. The word "adjourn" is derived from the Latin "ad" meaning "to" and "jurnus" meaning "day" and according to Webster's New International Dictionary, Sec- 869 ond Edition, one of its meanings is, 'To put off or defer to another day or place.... " The Constitution, Article III, Section VII, Paragraph XXII, Code Section 2-1922, uses the term of adjournment in the sense of recess. That section reads as follows: "Adjournments.-Neither House shall adjourn for more than three days, or to any other place, without the consent of the other, and in case of disagreement between the two Houses, on a question of adjournment, the Governor may adjourn either, or both of them." Furthermore, Article III, Section IV, Paragraph III, Code Section 2-1603, in which express provision is made for a split session, speaks of adjourning a regular session to a later day. Not only is the term used in that sense in the Constitution, but the rules of the house and senate make similar use of the term. Our Supreme Court has had no occasion to pass upon the question and the appellate courts of other states are divided as to the meaning to be accorded similar constitutional language. Thus, on almost the identical question as exists in Georgia, the Supreme Court of Connecticut in State, ex rei. Corbett, 77 Conn. 257, 58 A. 759, in effect held that a three day recess constituted an adjournment which would prevent the return of the bill to the legislature. The Supreme Court of Nebraska in Miller v. Hurford, 11 Neb. 377, 9 N. W. 477, reached exactly the opposite conclusion. The Supreme Court of the United States in the case of Okanogan Indians v. United States, 279 U. S. 672, decided by that Court in 1929, held that similar language in the federal constitution, specifically in section VII, article I, applies where the adjournment was to a day certain and not merely to a final adjournment. In that case at page 685 the Court quotes with approval from the opinion of the attorney general of the United States the following language: "All these provisions indicate that in order to enable the President to return a bill the Houses should be in session; and if by their own act they see fit to adjourn and deprive him of the opportunity to return the bill, with his objections, and are not present themselves to receive and record these objections and to act thereon, the bill can not become a law unless ten days shall have expired during which the President will have had the opportunity thus to return it. There is no suggestion that he may return it to the Speaker or Clerk, or any officer of the House; but the return must be made to the House as an organized body." In view of the above, I am of the opinion that the Constitution allows you thirty days from February 25 in which to act on bills awaiting approval at that time. HOSPITAL AUTHORITIES-County (Unofficial) (1) A county is not empowered to acquire and construct a medical project under the hospital authorities law, ,but must empower a hospital authority to do so. (2) A county may, pursuant to its contract with such authority, levy a five mill tax to be paid to the authority for the use of its services and facilities. (3) A county may levy an additional two mill tax to be used by the Authority to maintain, construct, equip and alter or repair its project. September 1, 1953 Honorable R. C. Johnson You inquire if the amendment to the Hospital Authorities Laws passed by 370 the 1953 Session of the General Assembly (Ga. Laws 1953, Jan.-Feb. Sess., p. 103) limits counties to the levy of 2 mills for the purpose of acquiring and building a county health center and if said amendment does not so limit the county, can the county levy enough under its levy for public health to pay for the health center in one year besides enough to operate and pay salaries to public health officers? The "Hospital Authorities Law" (Ga. Laws 1941, p. 241) creates in each county an authority which, to become active, must be activated by a resolution of the governing county authorities. Once activated these hospital authorities are empowered to raise revenue, by the issuance of revenue certificates and various other means, in order to carry out the duties of the authority, namely, to acquire or construct a medical or hospital project and operate same. Said authority is not delegated any power to tax, to build or maintain a project. Section 10 of said Act, as amended, gives the county or political sub-division participating the power to levy a 5 mill tax which is to be used to "pay for the cost of the use of the services and facilities of the authorities by participating sub-divisions." Said Section 10 of said Act further provides for a 2 mill levy by a participating sub-division to be used "exclusively to pay for the cost of acquiring, construction, equiping, altering, modernizing or repairing" of the project. The following can be concluded from the above: First, a county is not empowered to acquire or construct a medical project under the "Hospital Authorities Law," but must empower its hospital authority to do so; second, a county may, pursuant to a contract with the authority, levy a 5 mill tax to be paid to the authority for the use of its services and facilities. Presumably this revenue may be used by the authority as it sees fit; third, a county may levy an additional 2 mill tax to be used by the authority to maintain, construct, equip, alter or repair its medical project. As to whether a county itself, in constructing a health center, may levy taxes sufficient to pay therefor I refer you to Sections 88-206 and 88-313 of the Annotated Code of Georgia which provide the manner in which county health expenses are paid. HOSPITAL AUTHORITIES-Taxes (Unofficial) Counties or municipalities having a hospital authority may levy a tax up to 5 mills for the purpose of paying other obligations under contract with the authority, and in addition thereto may also levy a tax up to 2 mills for the construction, equipping and modernization of such projects. Honorable A. G. Meadows April 28, 1953 In your letter you state: "Please give me an unofficial opm10n as to whether or not our Board of Commissioners can make a levy for the benefit of Hospital Authority of Douglas County as contemplated in Senate Bill No. 24 by Senator Millican, amending an Act of 1941. If in your opinion a levy can be made, then what amount can be levied?" The Georgia Hospital Authorities Law (Ga. Laws 1941, pp. 241, 242), and particularly Section 99-1512 of the Supplement to the Georgia Code, contains the following provision: " . For the purpose of providing such tax revenues there is hereby author- 371 ized to be levied an ad valorem tax not exceeding five mills exclusive of all other taxes which may be levied by counties or by cities or towns which have executed contracts with hospital authorities. . . , " This section was amended by the General Assembly in an Act approved February 17, 1953. Said amendment contains the following provision: " ... counties, cities or towns which have executed contracts with hospital authorities are hereby authorized to levy annually an additional ad valorem tax not exceeding two mills exclusive of all .other taxes, from which additional revenues when realized there shall be appropriated sums to be used exclusively to pay for the cost of acquiring, construction, equipping, altering, modernizing or repairing by authorities of any 'propect' as defined in this Act, pursuant to the contract between such participating subdivisions and an authority, such cost including but not being limited to the principal and interest, and sinking fund and reserve requirements, or revenue certificates or bonds issued by authorities to acquire, construct, equip, alter, modernize or repair such projects; provided further, the foregoing authorization to levy up to two mills additional tax to be used exclusively for acquiring, constructing, equipping, altering, modernizing or repairing projects, is not intended and shall not be construed as a limitation, reduction or restriction with respect to the levy and use of the aforesaid five mills tax first provided in this section. . . . " It therefore appears from the original law and the amendment thereto that the participating counties or municipalities having contracts with the hospital authority may levy a tax up to five mills for the purpose of paying other obligations under contract with the authority and in addition thereto they may also levy a tax up to two mills for the purposes outlined in the amendment of 1953 as quoted above. This would make a total levy of seven mills. HOUSING AUTHORITIES-Towns and Cities (Unofficial) 1. Under the Housing Authorities Act, the existence of such authorities is restricted to those municipalities designated as a "city." 2. A town which becomes a city subsequent to the passing of the housing authorities law would have created therefor a housing authority at the time said town became a city. Honorable Paul J. Jones, Jr. April 24, 1953 You ask the following three questions: "(1) Is there a corporate body known as a 'Housing Authority' in a municipal corporation of this State, which is designated in its charter a 'Town'? Or does the language of Code Section 99-1104, together with the definition of city as contained in Section 99-1103 (b) restrict the existence of a 'Housing Authority' to those municipalities designated as a 'City' within their charter. "(3) Does the language of Code Section 99-1104 restrict the existence of a 'Housing Authority' to those municipal corporations designated as cities at the time of the passage of the act," In answer to the first question, in the case of Western Union Telegraph Co. v. Jackson, 98 Ga. 207, and also in j;he case of Savannah, Florida & Western Railway Co. v. Jordan, 113 Ga. 687, the Court construed the word "city" not to mean a "town." In both of these the Court dismissed a writ of error .from courts that claimed to be constitutional city courts under Paragraph V, Section 372 II, Article VI, of the Constitution of 1877. The Court said that the language of the Constitution provided that the Supreme Court had jurisdiction for corrections of errors of law from "city courts of Atlanta and Savannah and such other like courts as have been or may hereafter be established in other cities," and that where a city court was not created in an incorporated city, the Supreme Court would not take appellate jurisdiction over it. In construing the "Housing Authorities Act" the 1943 amendment changed the definition of a "city" from those over 5,000 in population to "any city in this State," and at the same time by enacting Section 99-1153 of the Code of Georgia, Supplemental Pocket Part, provided for any municipality to join with one or more municipalities for one Housing Authority. This section provided that a "municipality" shall mean any city, town, village, or other municipality in this State. It would seem, in comparing these two sections, that the Legislature did not intend for a "town" to be synonymous with a "city," and made certain provisions for "towns." In answer to the 2nd question, it seems that a town which becomes a city subsequent to the "Housing Authorities Law" would have created a Housing Authority of the city at the time it became such. Certainly, when in 1943 the Legislature provided that cities under 5,000 population would be subject to the "Housing Authorities Law," Section 99-1104 opened up for all cities under 5,000 population, and, by the same token, it would open up for all towns made cities subsequent to the enactment of the law. INSANE PERSONS-Lunacy Commissions (Unofficial) The law requires that a lunacy commission personally and formally examine the person alleged to be a lunatic. January 30, 1953 Mr. Arthur E. Fixel You request that I give you advice on the following question: "Relatives of the alleged incompetent have called here to advise us that the examiners who were appointed to determine the mental condition of the party involved did not see him, and that the party was not brought before the Ordinary. It happens that the party was in the Veteran's Hospital in Alabama at the time. Can you advise us whether your practice and procedure permits such a report of 'unsound mind' and an order so adjudicating (a) without contacting the respondent, or (b) without bringing the respondent before the Ordinary.." I suggest that you read the case of Georgia Railroad Bank and Trust Company, 180 Ga. 4. You will note that the court in this case cited the case of Singer vs. Middleton, 135 Ga. 825, in which the Supreme Court of Georgia held: "In a proceeding to appoint a guardian for a person alleged to be imbecile, the statute is to be strictly construed, and the provision that the person for whom it is sought to have a guardian appointed shall be 'examined by inspection' by the commissioners is mandatory, and requires formal examination by the Commissioners in a body." The Supreme Court of Georgia in the Georgia Railroad Bank and Trust Company vs. Liberty National Bank and .Trust Company case above cited held: "In view of the express requirement as to formal examination by inspection of a person alleged to be a lunatic, the statute of this State prescribing the method of determining an issue of lunacy, and providing for the appointment 373 of a guardian of one adjudged to be a lunatic, does not violate the due-process clause of the State or the Federal constitution in that it fails to provide for any notice to the person alleged to be insane." The Court further held in this case: "Under the Georgia statute the commission to examine is a branch of the court, and, as was held in Singer vs. Middleton, supra, the examination by inspection is mandatory and must be a formal examination by the commissioners in a body. This requirement of the statute supplies to the alleged lunatic sufficient notice and opportunity to be heard." The Georgia Railroad Bank and Trust Company vs. Liberty National Bank and Trust Company case above cited is quite a lengthy case, and I do not have a printed copy to forward you; however, I would suggest that you contact your local legal library and read this case in 180 Georgia Reports at Page 4. INSANE PERSONS-Revocation of Guardianship (Unofficial) A person who has been adjudged insane and confined to the state mental hospital and who desires to use funds in his estate for the purpose of proving that his sanity has been restored, should properly proceed by making application to the ordinary for revocation of the letters of guardianship. February 18, 1953 Mr. Robert E. Pierce I am pleased to acknowledge your letter relative to the right of a person who has been adjudged insane and now a patient in the State Mental Hospital to use available funds in his estate for the purpose of proving that he is not now a fit subject for such State institution over the objection of his duly appointed guardian. I would suggest that you review the provisions of Section 49-232 of the 1933 Code, which provides for the revocation of letters of guardianship under certain conditions. It may be that upon a proper showing to the ordinary of the county in which the guardianship was granted, the court would see fit to revoke the letters of guardianship or pass such other order which would be to the best interests of the alleged incompetent. INSURANCE-Investigation of UIJ.licensed Businesses The Insurance Commissioner may legally cause an investigation and examination of unlicensed. and unincorporated organizations doing business in this state, and operating in a manner similar to that of fraternal benefit societies, upon notice and an opportunity for a hearing being provided. July 21, 1953 Honorable Zack D. Cravey Insurance Commissioner You request my opinion relative to the investigation of unlicensed and unincorporated organizations doing business in this state and operating in a manner similar to that of fraternal benefit societies. Section 56-104 of the Georgia Code, as amended, is a section of general application providing for the examination by the Insurance Commissioner of insurance companies doing business in this state. Also, Section 33 (5) of the Fraternal Benefit Societies Act, (Georgia Laws 1943, pages 495, 529), codified 374 as Section 56-1641 (5) of the Annotated Code, provides that the Commissioner may require from any society or association by examination or otherwise such information as will enable him to determine whether such society or association is exempt from the provisions of the Fraternal Benefit Societies Act. In my opinion ample authority is vested in the Commissioner by one or both of the above provisions of law to enable him to make an examination of such an organization, and after notice and hearing determine whether such organization has complied with the insurance laws of this state. Specifically, the Commissioner must determine from such investigation and hearing whether such organization falls within Section 56-901 of the Code, as amended, defining life insurance generally, or within Section 2 of the 1943 act, defining fraternal benefit societies. In the event such organization is found to fall within Section 56-901 and to be operating without a license and without complying with laws regulating life insurance companies, the Commissioner should furnish the solicitor general of the circuit in which such organization is located or doing business with such information, with a view toward prosecution under Section 56-9926 of the Georgia Coae Annotated Supplement. On the other hand, should the organization be found to be a Fraternal Benefit Society, the Commissioner should proceed under Sections 56-1636 and 56-1637 of the Georgia Code Annotated Supplement and in conformity with the opinion of the Attorney General given to Insurance Commissioner Parker under date of April 23, 1942. Also, the Commissioner might proceed under Section 56-1644 or 56-9933 of the Georgia. Code Annotated Supplement. I might point out that Section 56-1604 (Supplement) makes the Fraternal Benefit Societies Act mandatory on all societies falling within the definition of the act. Whether such organization is a fraternal benefit society depends upon the definition contained in Section 56-1601 (Supplement) which applies only to organization::; which are: 1. Incorporated 2. Without capital stock 3. Operating solely for benefit of members 4. Operating on a lodge system, as defined in 56-1602 5. Not operated for profit 6. Having a representative form of government, as defined in 56-1603 7. Making provision for payment of benefits in accordance with the Fra- ternal Benefit Societies Act. Should you determine that such organization does not comply with any of the above requirements of a fraternal benefit society, in my opinion you would not be authorized to proceed against such organization under any of the provisions of the Fraternal Benefit Societies Act as to injunction, dissolution, and the like. INSURANCE-Purchase of Fire Insurance by State The state may legally insure its property against fire so long as a cash premium is paid and the contract therefor does not provide for any future contingent liability as against the state. November 30, 1953 Honorable Herman E. Talmadge Governor of Georgia In response to your inquiry with regard to whether the State of Georgia can enter into a contract of fire insurance or other insurance with a .mutual 876 insurance company, I am of the opm10n that with the exceptions hereinafter noted, the state, may so contract. I have reviewed an opinion rendered by my predecessor, Honorable T. Grady Head, to Governor Ellis Arnall on September 27, 1943, and I concur in that opinion. In summary, it is my opinion that the state may insure its property in a mutual company where the contract provides for cash premium, and where the contract provides that there is no future or contingent liability as against the state, and provided the company meets the requirements of the statute so that it may issue a policy of this kind. The state would not be authorized to enter into a contract whereby a policy makes the state a member or stockholder and thereby makes the state liable for future contingent assessments or liability. LEGISLATION-Enactment of Laws House Bill 627 (January-February Session, 1953) does not meet necessary constitutional rquirements for the reasons stated. March 24, 1953 Honorable Herman Talmadge Governor of Georgia You request me to advise you whether H. B. No. 627 as presently enrolled meets all constitutional requirements. It appears that this question has been raised as the result of a suggestion by one of the authors of the bill, Honorable B. C. Gardner, Jr., Representative, Dougherty County, that certain changes be made in the bill by the Clerk of the House of Representatives acting under authority of the enrolling committee of the House. Upon examination of the bill, I am constrained to hold that: 1. House rules No. 170 and No. 199 which allow the enrollment and engrossing committees to correct errors that may be discovered applies only to errors discovered before the bills are finally enrolled and transmitted to you. These rules provide that the discovery must be forthwith reported to the respective houses for correction. 2. Notwithstanding the evidence that the local notice of intention to introduce the bill was duly publicized, the enrolled bill as it is now in your possession, contains no certification of the same and therefore does not comply with the constitutional requirements in this respect. 3. The bill provides for increased compensation to the Tax Collector of Dougherty County when it was intended to apply only to the Tax Receiver, according to statements of the authors. The question of whether this so called typographical error could be changed at this posture must be resolved in the negative, since the bill has been enrolled in its present form and no opportunity afforded to refer it back to either house for correction. LEGISLATION-Local Laws-Proof of Publication Proof of publication of local acts need only be attached to the enrolled copy of the act in order. to comply with the Constitution. June 5, 1953 Honorable W. Harvey Atkinson, Director Property Tax Division I am happy to answer your letter of April 24, 1953, in reference to the 376 assessment of property tax upon the Southern Railway Company for property in Sugar Hill, Gwinnett County, Georgia. In a letter from Mr. William D. McLean, Tax Commissioner of the Southern Railway Company, he sets forth the position that the act of 1952 (Georgia Laws 1952, p. 2600) redefining the town boundaries of Sugar Hill, Georgia, is unconstitutional in that no notice of intention to introduce local legislation was attached to this act. Upon examination, it is found that a copy of the published notice of intention to introduce local legislation and the affidavit of the publisher is attached to the enrolled copy of this act. It is my opinion that this satisfies Article III, Section 7, paragraph 15 of the 1945 Constitution of Georgia relative to local legislation. See Smith v. McMicheal, 203 Ga. 74, 75; Smith v. City Coun.cil of Augusta., 203 Ga. 511 and Manning v. Upshaw, 204 Ga. 324. It is, therefore, my opinion that the 1952 act satisfied constitutional requirements as to introduction of local legislation. LEGISLATION-Advertisement of Local Legislation (Unofficial) The various legal requirements concerning the publication of advertisements of notices of intention to introduce local legislation are discussed. September 15, 1953 Honorable Robert G. Stephens, Jr. You request information relating to the publication of advertisements of notices of intention to introduce local legislation. Article III, Section VII, Paragraph XV of the Constitution (Code Section 2-1915) provides in part as follows: "No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the newspaper in which the Sheriff's advertisements for the locality affected are published, once a week for three weeks during a period of sixty days immediately preceding its introduction into the General Assembly." It has been and is our interpretation of this constitutional provision that these ads may be published in any of the three weeks within the sixty-day period immediately preceding introduction of the bill. The time of the first publication must not be more than sixty days prior to the introduction of the bill. If you desire to introduce your bills on the first day of the session, it will be possible to publish your ads on October 30th, November 6th and November 13th. However, we have been advising the members of the General Assemb.Jy to publish the ads during the month of October which gives a margin of safety and also affords an opportunity for correction of the ads, if necessary. I would also like to call to your attention the case of Bracewell et al. v. Warnock, Mayor, et al., 208 Ga. 388, in which the Court held that a bill can not be introduced within the same week in which the last publication appears in the newspaper. In other words, if your last ad, for example, appeared in the newspaper on Wednesday, the bill could not be introduced before Monday of the following calendar week. 377 LEGISLATION-General-Special Laws (Unofficial) Legislation which by its terms affects only counties not having city or county courts is general legislation. January 14, 1953 Honorable James W. Adams This will acknowledge receipt of your letter in which you ask whether " ... certain legislation applying to the ordinary's court of certain counties not specifying any counties but affecting any counties not having city .or county courts" would be considered as local legislation or general legislation. It is my personal view that the classification used here is a reasonable one, and that such a bill would be considered general rather than local. LEGISLATION-Local Laws (1) An Act relating to voting precincts which by its terms applies to all counties containing a city having a population of more than 30,000, but which excepts all counties already having provisions for precinct voting (by population acts), is unconstitutional as being a special law where provision has already been made by general law. (2) The foregoing Act is also unconstitutional in that the General Assembly is without authority to make or change election precincts. Honorable Herman E. Talmadge February 23, 1953 Governor of Georgia You request my opinion as to the constitutionality of House Bill No. 94. The title of this bill is comprehensive enough to apprise you of its objective. Therefore, I shall confine my remarks to the question of its constitutionality. Section 1 provides that: "The Act shall become effective, upon the recommendation of one grand jury and on joint resolution of the governing authorities of such municipalities and of such counties, in all counties of this State containing a city having a population of more than 30,000, according to the United States Census of 1950, or any future census. This Act shall not apply in counties for which provisions for precinct voting has already been made by laws of the State of Georgia which provide for precinct voting in counties of designated population. (Boldface supplied) This section seeks to make the bill general in its application as to all counties containing cities having a population of more than 30,000 according to the United States Census of 1950 or any future census. However, it must be noted that in the same section there is an exception for counties containing cities having a population of more than 30,000, etc. which have made provisions for voting in precincts. Fulton County, by reason of its own laws, comes within the exception to which this clause refers. I am reliably informed that two other counties have similar laws. Inasmuch as this is true, this bill is definitely in violation of Article I, Section IV, Paragraph I of the Constitution (Code Section 2-401), which reads as follows: "Laws of a general nature shall have uniform operation throughout the State and no special laws shall be enacted in any case for which provision has been made by an existing general law." 378 By reason of the clause which excepts from its application counties for which provisions for precinct voting have already been made in counties of designated population, and in view of the fact that a county such as Fulton comes within this exception, the bill loses its status as a general bill and becomes one of a special nature which is prohibited by the foregoing constitutional provision. In the case of City of Cochran, et al vs. Lanfair (139 Georgia, p. 249), the Supreme Court in dealing with a similar situation declared that an act designed for all intents and purposes to be of a general nature territorially but which excepted one political subdivision was in violation of this provision of the Constitution because of its failure to have uniform operation. In that case, the Court was dealing with an Act of the General Assembly (Act 1874, p. 109), which declared that the ad valorem tax to be levied and collected by municipalities for ordinary current expenses should not exceed one-half of one per cent upon the value of property (except as herein provided) but excluded the City of Savannah from its operation. In its decision, the court stated "As the Act of 1874 was passed by the Legislature it was not one territorially general. By excepting the City of Savannah, it would not have uniform operation throughthe State." Applying this decision to the exception made in Section 1 of House Bill No. 94, I am of the firm opinion that it violates Article I, Section IV, Paragraph I of the Constitution (Code Section 2-401). It is to be noted further that in Section 5 of House Bill No. 94, there is a provision that voting precincts shall be "designated and determined by a committee of five persons, two of whom shall be appointed from the county by the Chairman of the Board of County Commissioners, where such county has a Board of County Commissioners, or the Ordinary, as the case might, be, two shall be appointed from the city by the mayor or head of such city, and the fifth shall be the Registrar hereinabove provided." Article III, Section VII, Paragraph XVII of the Constitution (Code Section 2-1917) reads in part as follows: "The General Assembly shall have no power ... to make or change election precincts ... but shall prescribe by law the manner in which such powers shall be exercised by the courts. . . . " I am of the opinion that the portions of the act prvviding for the designation of election precincts are in violation of this particular provision of the Constitution. FIRE LICENSES-Lovell Community Bazaar Under the Georgia Fire Safety Law, any part of a carnival or circus .nust obtain a fire prevention license, and said license is not required to be pHIcured only where the licensee comprises a number or collection of such shows, riding devices, booths, or concessions. December 16, 1953 Honorable F. E. Robinson State Fire Marshal Briefly stated, you request my opmwn as to whether or not the Lovell Community Bazaar described as "somewhat similar to a vaudeville show" under a small tent, having a stage and "two or three booths with bazaar type of entertainment" is required to obtain a fire prevention regulatory license under Section 18 of the Georgia Safety Fire Law (Ga. Laws 1949, p. 1057), which 379 requires "All traveling motion picture shows, carnivals, and circuses" to obtain such a license from the State Fire Marshal at an annual fee of $100.00. It is my understanding that counsel for the above organization takes the position that the same is not required to be so licensed for the reason that the General Assembly in employing the words "carnivals" and "circuses" manifested an intention only to regulate "collective amusement groups" of which the above organization would be but a unit, and that no organization would be subject to the safety fire act unless it contained "a number of shows, riding devices, and concessions." I do not feel that I can subscribe to, or that the act itself will admit of, so narrow and restricted an interpretation. The law being clearly applicable to all carnivals and circuses, it seems to me equally clear that it applies to a single carnival or circus, or a part thereof. It would cdmpletely defeat the purpose of the act to require regulation of a collective amusement group without requiring regulation of each of its component parts, and I do not see how the fact that such a component unit chooses to travel alone alters the necessity for fire prevention regulations or in any way removes the hazard of fire. I feel no reluctance to say that the subject organization is the type of entertainment usually identified with a carnival or circus and, therefore, subject, as a component part, to the safety fire law as reasoned above. However, inasmuch as the subject organization itself contains a stage and several booths providing various amusements, it is possible that it might be said to constitute an entire carnival in itself, rather than only a component part of a carnival. In either event, the results are the same, and for these reasons I am of the opinion that the subject organization falls within Section 18 of the Act and should be subject to your supervision and regulation. LICENSES-Sale of Fireworks (Unofficial) A license is required to be obtained from the governing authorities of any county prior to the sale of fireworks in said county outside the limits of any incorporated municipality. August 11, 1953 Mr. J. S. Brown Your letter addressed to Documents and Publications, Division of Printing, State Capitol Building, Atlanta, Georgia has been referred to the Law Depart- ment for reply, in which you request information as to laws and regulations re- garding the sale and delivery of fireworks into the state of Georgia. Title 23-2701 of the Annotated Code of Georgia, 1933 Supplement, reads as follows: "No person, firm, or corporation shall sell at either wholesale or retail, give away or distribute, any fireworks outside the limits of any incorporated municipality without having first obtained a license so to do from the commissioner of roads and revenues of such county, or other governing authority!' It is my suggestion that in whatever counties you wish to sell fireworks that you first obtain from the county officials a license to do business in any particular county. 380 LICENSES-Pest Control Business (Unofficial) A person, business or company engaged in the pest control business, not being specifically exempt by law, may legally be required to pay a license fee not only in the county where its principal office is located, but also in any county or city in which its business is carried on. July 14, 1953 1\:fr. James 1\:f. Hull, Jr. This is in response to your letter of July 8, 1953 in which you state: "We represent a client who conducts a pest control business throughout several counties in this State. His principal office and place of business is in Augusta, Richmond County, Georgia, and he pays a license tax on his business to Richmond County and the City of Augusta. He performs services in various towns in other counties, and the authorities in some of these towns have advised him that he must pay a license tax in each of the towns and counties in which he does business. "It is our understanding that the payment of the license tax in the city and county wherein his principal office and place of business is located is all that is required of him under the laws of this State. We would appreciate your opinion along these lines." The payment of a license tax in the city and county wherein the office or principal place of business is located would not in my opinion relieve the taxpayer from paying a license tax in other cities or counties where he carries on his pest control business. You possibly have in mind Section 92-4105 of the Georgia Code, Annotated, which states: "The authorities of any municipal corporation shall not levy or collect any tax or license from a traveling salesman engaged in taking orders for the sale of goods where no delivery of goods is made at the time of taking such orders." The courts in construing this Section in National Linen Service Corporation v. City of Albany, 177 Ga. p. 81, held that a linen supply business was taxable in any county in which the company did business. After the repeal of the license taxes imposed under the General Tax Act, a number of cities imposed city licenses for the professions or occupations. As a result of this practice the Legislature at its 1953 session (Ga. Laws 1953, Jan.-Feb. Sess., p. 207) passed an act limiting the taxing powers of municipal and county authorities with reference to certain occupations. Sections 1 and 2 of this Act are as follows: "Section 1. From and after the passage of this Act no municipal corporation or county authority of this State, notwithstanding any provision in its charter to the contrary, shall levy or collect any license, occupation or professional tax upon practitioners of law, medicine, osteopathy, chiropraotic, chiropody, dentistry, optometry, masseur, public accounting, embalming, funeral directors, civil, mechanical, hydraulic, or electrical engineering or architecture except at the place where any such practitioner shall maintain his principal office. Provided, such levy shall not exceed the levy imposed under the laws of the State of Georgia as the same existed in 1950. "Section 2. Provided further that where any such principal office is located within the corporate limits of any municipality no county authority shall have the power or authority to levy any such tax as to that office." Since the foregoing act does not include pest control business, they are not entitled to the exemption. 881 LIVESTOCK-No Fence Laws (Unofficial) 1. The Livestock Act (Ga. Laws 1953, Jan.-Feb. Sess., p. 380) is not void for ambiguity. 2. The provisions of said act, providing for referendums in counties to bt~ affected thereby, do not make said act a special law. May 8, 1953 Honorable Steve M. Hall You ask several questions relating to the "Livestock Act" passed at the recent session of the General Assembly (Georgia Laws 1953, Jan.-Feb. Sess., page 380). You state that Paragraph 4 of Section 2 defines public roads as those which are maintained by the State Road Department, and you further state that we have no State agency known as the State Road Department. It is my opinion that the courts would interpret this as meaning the State Highway Department, since that is the agency which maintains such public roads. I do not believe this particular section would be declared void because of ambiguity. As you point out, there is definitely a mistake in Section 15. That section reads as follows: "Section 15. The provisions of Section 19 of this Act shall become effective on April 1, 1953. The remaining provisions of this Act shall become effective in every county in this State on October 1, 1955, except in those counties in which an election or elections must be held as provided in Section 19, in which counties the remaining provisions of this Act shall become effective as provided in Section 19." Section 19 is the repealer clause, and it is obvious that the reference in Section 15 should be to Section 18 rather than to Section 19. I am of the opinion that the courts would adopt a liberal construction and would hold that it is obvious that the reference should be to Section 18, and the error is in the nature of an oversight or typographical mistake. I think that the courts would say that the General Assembly did not intend to pass something that was meaningless. You will also note that in Section 15 itself there is a reference to elections which must be held as provided in Section 19. It is plain that the only elections provided for are in Section 18. This makes it even more obvious that Section 18 should be substituted by construction for Section 19. The Court would have ample authority for so holding, under the ruling of the Supreme Court in the case of Lamons v. Yarborough, 206 Ga. 50. You further ask my interpretation of the act under the provisions of Article I, Section IV, Paragraph I of the Constitution (Code Section 2-401), which provides in part that laws of a general nature shall have uniform operation throughout the state. I am of the opinion that even though some counties are required to hold elections before they will come under the provisions of the act, this does not violate this constitutional provision. You will recall that the old law provided for elections before counties would come under its provisions. I, therefore, reach the conclusion that as far as that particular point is concerned, the act does not violate the provision of the Constitution to which you refer. 382 LIVESTOCK-Open Range A landowner distributing nitrate of soda for reforestry purposes on his land situated in an open range county, which land is not enclosed by fences as provided by law, is liable to any stock owner whose animals are poisoned as a result of eating such nitrate of soda. June 30, 1953 Honorable Guyton DeLoach Director, Georgia Forestry Commission I am in receipt of the letter written by Ranger C. W. Neil, which was forwarded by you to us, inquiring as to the liability of a landowner who puts out nitrate of soda in order to promote growth of timber on burned-over land, if livestock of another are poisoned and killed as a result of eating said nitrate of soda. The question above cited pertains to counties which have free range. Section 62-801 of the Code of Georgia Annotated of 1933, provides as follows: "In any county which has not adopted the stock law as provided in Chapter 62-5, if any trespass or damage shall be committed in any inclosure, not protected by lawful fence, as prescribed in Chapter 62-4, by the breaking in of any anim~l, the owner of such animal shall not be liable to answer for the trespass; and if the owner of the inclosure shall kill or injure such animal in any manner, he shall be liable in three times the damage." Section 62-802 of said Code provides: "When fences are made pursuant to law and any animal shall break in, the owner of the inclosure shall not kill or injure him for the first breaking, and not until after notice shall be given to the owner or agent, if possible, but said last mentioned owner shall be liable for double the damages done by his stock." Section 62-803 of said Code provides: "If stock shall be killed or injured by poisoned crops or other poison upon the premises, the presumption is that the poisoning was done by the person in possession and charge of the same." It can be readily seen from the above Code Sections that landowners using nitrate of soda to help reforest lands in free-range counties would be liable to owners of livestock, if said livestock dies as a result of eating the nitrate of soda. LIVESTOCK-No Fence Laws (Unofficial) Notwithstanding certain specified typographical errors in the No Fence Law passed by the legislature in 1953 (Ga. Laws 1953, Jan.-Feb. Sess., p. 380), the election thereunder should be held as provided in said act and not as provided under the old law. April 13, 1953 Honorable Martin B. Holt The first paragraph of your letter reads as follows: "The No Fence Laws is being called to my attention most every day. I would like for you to advise me whether the election will operate under the old law or under the law that was passed by the Legislature in 1953." The 1953 Act in question may be found in Georgia Laws 1953, Jan.-Feb. Sess., page 380. Section 15 of that act reads as follows: "Section 15. The provisions of Section 19 of this Act shall become efieetive 883 on April 1, 1953. The remaining provisions of this Act shall become effective in every county in this State on October 1, 1955, except in those counties in which an election or elections must be held as provided in Section 19, in which counties the remaining provisions of this Act shall become effective as provided in Section 19." There is an obvious error in the reference to Section 19, because the reference should be to Section 18. It is my opinion that this poses no problem because the remaining language of Section 15 refers to the election provisions, which are contained in Section 18, and, also, the Supreme Court, in the case of Lamons v. Yarbrough, 206 Ga. 50, has ruled that obvious errors such as this may be construed to arrive at a proper conclusion. Section 18 of the Act reads as follows: "Section 18. In every county of this State not presently having special laws or general laws of local application requiring the confinement and restraint of livestock, or not having adopted by election under Section 62-501 of the Code of Georgia as it existed on February 24, 1953 the 'no-fence law,' there shall be held an election on the first Wednesday of July, 1953, at which election the question of adopting the provisions of this Act shall be put to persons qualified to vote in said county for members of the General Assembly. It shall be the duty of the ordinary of each such county to issue the call for such election and to cause notice of the date and purpose of such election to be published once a week for two weeks immediately prior to the date thereof in the official organ of such county. The ballot shall have printed thereon the words: 'For adoption in ---------------------- County of the Act prohibiting livestock from running at large or straying upon public roads' and 'Against adoption in ------------------------ County of the Act prohibiting livestock from remaining at large or straying upon public roads.' "Those persons voting in favor of the adoption of this Act shall vote for adoption and those voting for rejection of this Act shall vote against adoption. If a majority of those persons voting in such election vote for adoption of this Act, then it shall become of full force and effect in such county on October 1, 1955. If a majority of those persons voting at such election vote against the adoption of this Act, this Act shall not become effective in such county, and the question shall be put at the next succeeding general election in like manner, and at each succeeding general election in such county until a majority of the persons voting thereon shall vote for adoption of this Act and the same shall become of full force and effect in such county on October 1, 1955, unless the date of such election is less than twelve months from October 1, 1955, in which event this Act shall become of full force and effect in such county twelve months from the date of such election. It shall be the duty of the ordinary to canvass the returns and certify the results of the election, and it shall be his further duty to certify the results thereof to the Secretary of State.'' I am of the opinion that the provisions of this section called for all elections after April 1, 1953 to be held in the affected counties under the provisions of that section and not under the old law. 885 election to purge the list of registered voters prepared for the last general election of any names subsequently disqualified for any reason and to furnish the managers of such special election two lists, one composed of the names of voters entitled to vote by reason of their registration and qualification for the last general election, and the other made up of the names of those entitled to vote by reason of their subsequent registration as heretofore provided, and no one shall be entitled to vote in said special election unless his name is on one of the lists furnished by the registrars." MUNICIPAL CORPORATIONS-Annexation of Territory (Unoffic.ial) Section 69-901 of the Code Annotated (Supplement), authorizing municipalities to annex additional territory by ordinance, is unconstitutional. Honorable G. C. Dekele, Jr. October 15, 1953 You request my unofficial opmwn as to the constitutionality of the act of January 31, 1946 (Ga. Laws 1946, p. 130), codified as 69-901 (Supp.), which act authorizes municipalities to annex additional territory by ordinance. Under the principles announced in Phillips et al. v. Atlanta, decided by the Supreme Court September 15, 1953, and popularly referred to as the "home rule case," I do not think there is any doubt but that the above act is unconstitutional as being in violation of Article III, Section I, Paragraph I of the Constitution, declaring that all legislative power is vested in a General Assembly. The holding in the "home rule case" as it bears on your question, may be summarized as follows: (1.) Legislative powers may not be delegated. (2.) The incorporation of additional territory by a municipality of this State is legislative in character. (Bennett v. City of Baxley, 149 Ga. 275, superseded). (3.) The Home Rule Act (for reasons immaterial to your question) does not comply with the requirements of the special constitutional provision authoriizng home rule enactments, and is. void for the reason assigned in (1) and (2). (4.) The holding in White v. City of Atlanta, 134 Ga. 532(5), does not admit of the construction that the legislature can empower municipalities generally to incorporate additional territory by referendum, but that the legislature may only prescribe by special act for the incorporation of additional territory, specifically described or referred to therein, and condition the act's becoming effective upon the outcome of a referendum by the people affected. "Such is not a delegation of legislative power but is simply an exercise o:f that power, guided by the will of the people to be affected." Therefore, it is my opinion that you should proceed first with a special act at the November Session, and if you desire to submit the question to a vote of the people to be affected thereby, make sufficient provision therefor in the bill. MUNICIPAL CORPORATIONS-Bonds (Unofficial) The Town of Sparks is authorized to issue bonds for acquisition of a fire department. June 4, 1953 You request that I inform you if the Town of Sparks is authorized to issue fire department bonds. 386 Your attention is called to the fact that a municipality has the right and authority to act in matters authorized in its charter granted by the General Assembly, and such amendments thereto as may be enacted from time to time after grant of the original charter. I would suggest that you read the charter of the Town of Sparks, and especially the amendment thereto by the General Assembly approved August 12, 1907 (Georgia Laws 1907, page 922), which provides that said town shall have the right to call elections for the voting of bonds for waterworks, electric and other lighting plants, building town halls and any and all other public buildings and enterprises that said town may desire, and authorizing the levying of a tax for said bonds. MUNICIPAL CORPORATIONS-Licenses Municipalities are now authorized to impose occupational taxes upon certain professions. Honorable D. H. Hurst February 2, 1953 I wish to acknowledge your letter in which you enclosed a newspaper clipping concerning tax fees on professions in Gainesville, Georgia. You ask that I give you my opinion as to whether or not such tax fees are collectible according to the Georgia law. Section 92-1909 of the 1933 Annotated Code of Georgia, which is as follows: "Each and every practitioner of law, medicine, osteopathy, chiropractic, chipropody, dentistry, optometrist, masseur, public accountant, or embalmer, and every civil, mechanical, hydraulic, or electrical engineer, or architect, charging for their services as such, shall pay $15, and the validity of their licenses is made contingent upon the payment of the tax herein provided. No municipal corporation or county authority shall levy or collect an additional tax on the professions, businesses, or occupations enumerated above. Such tax to be collected as other license or occupation taxes are collected." was repealed by the General Assembly at their session in 1951 (Ga. Laws, 1951, pp. 157, 163). There is now no provision in our law which would prohibit the levying of an occupational tax by municipalities upon the professions enumerated in said paragraph. MUNICIPAL CORPORATIONS-Public Sales (Unofficial) It would not be legal for a city official to bid for his own private use at public sales conducted by the city, as the city is itself authorized to make purchases in its own behalf. Mr. Zach Arnold October 23, 1953 I have received your letter in which you asked whether or not it is illegal under Georgia Law for a city official to bid at a public sale on property levied on or sold by municipalities. At first glance, your letter seems to imply that you are concerned with whether or not a city official can bid officially for the city at public sales on property levied on or sold by a municipality. However, upon further study I presume that you probably are concerned with whether the city official can bid 887 in such property for his own private ownership rather than for the city's ownership. A municipal corporation has no authority aside from that governed by statute to sell real estate for unpaid municipal taxes; likewise, a municipal corporation has no power aside from that governed by statute to buy in realty for taxes, but it may purchase at a tax sale if it is expressly authorized to do so. (See 64 Corpus Juris Secundum p. 880). Code Section 92-4403 provides: "Whenever at any such sale by a municipal corporation for taxes due it, no one person shall bid for the property put up to be sold as much as the taxes for which it is proposed to sell the same ... then any duly authorized officer or agent of the corporation may bid in such property for the corporation." Since a municipal corporation through its officials are authorized to purchase property sold by the municipality at a public sale for taxes, it would appear to me to be highly improper for a municipal official who would have the power to purchase the property in the name of the city to so purchase said property in his own name and right. I do not find any specific code section dealing with the point, but as stated, it is my opinion that it would be against public policy for municipal officials to purchase for themselves property levied on or sold by municipalities for taxes. NOTARIES PUBLIC-State at Large; Use of Official Title (Unofficial) (1) Notaries public for the state at large are no longer in existence, but under present law notaries public are commissioned by the clerk of the superior court in the county of their residence. (2) A notary public does not use his seal in the attestation of specified papers not requiring such use. His title should be written under his name, but where the seal is used it probably is not necessary for him to show such title. July 3, 1953 Hon. F. P. Lindsey I have received your letter in which you ask my opinion on two points, firstly, whether the office of a Notary Public, Georgia, State at Large, is still legally effective, and, secondly, whether it is necessary for a Notary Public to type or write his official title underneath his name, when attesting deeds. Ga. Laws, 1952, pp. 456-457 provides as follows: "For the authentication of their notarial acts each notary must provide a seal of office, which shall have for its impression his name, the words, 'Notary Public'; the name of the State and the county of his residence, or shall have for its impression his name and the words 'Notary Public, Georgia, State at Large.' A scrawl shall not be a sufficient notary seal. No seal is required to his attestation of deeds." Also, I invite your attention to Sec. 71-111, Supp., Ga. Code Ann., which provides as follows: "All commercial Notaries Public and Notaries Public for the State at Large whose commissions were issued under the provisions of Chapter 71-1 and 71-2 repealed herein, shall continue to the end of their respective appointments. During such time they shall have full authority to act as Notaries Public under the provisions and the terms of this chapter, and at the end of such terms shall 388 have the privilege of making application for renewal of their appointments under the provisions of this chapter." Chapter 71, Supp., Ga. Code Ann. provides that the power to appoint Notaries Public is vested in the Clerks of the Superior Courts. From the above it will appear that Notaries Public for the State at Large who were formerly appointed by the State Librarian are no longer in existence. They were originally appointed for a t.erm of four years. Such term of office would therefore necessarily have now expired since the acts of 1947, which provides that they shall hold offices for a term of four years until their term was expired. From the above, however, it will likewise be noted that they have a right for the renewal of their appointments under the provisions of the acts of 1947 (Sec. 71-111, Supra). Thus, I believe that they could seek reappointment by the respective Clerk of the Superior Court in the county of their residence. The question would be whether or not they would be reappointed as a Notary Public, Georgia, State at Large or a Notary Public of the County of their residence. In view of Section 71-107, supra., it would seem that they could seek appointment from the Clerk of the Superior Court for the title of Notary Public of the respective county or Notary Public, Georgia, State at Large; the authority of either title and office being synonymous. The old type of Notary Public, Georgia, State at Large who was appointed by the State Librarian is no longer in existence, but a new type appointed by the Clerk of the Court is possible. In answer to your second question, Ga. Laws 1952, pp. 456-457 states that no seal is required for attestation of deeds. This would seem to indicate that if no seal is required then in order to identify the witness as a Notary Public that he should write his title under his name. On the other hand, in those instances where the seal is used it would seem that such would be sufficient authentication of his notarial act. I feel, however, that it is better practice to write the title of his office underneath the name rather than to use the seal only. I believe that a seal would be required by Notaries Public who have appointments in other states for proper authentication, and the best practice for such non-resident notaries would be the use of name, title, seal, and date of expiration of commission. PARDONS AND PAROLES-Revocation The Board of Pardons and Paroles, in revoking a conditional pardon of a parolee who was convicted of burglary committed while on parole, may stipulate in the order of revocation that the balance of the original sentence be served consecutively with the new sentence. Honorable Charles A. Pannell Chairman, State Board of Pardons and Paroies June 16, 1953 I am happy to answer your letter of May 21, 1953, in which you asked for my official opinion as to whether the State Board of Pardons and Paroles may in a revocation order stipulate that the balance of the original sentence of a parolee run consecutively with new sentences placed upon the parolee by a court of competent jurisdiction. The facts in this case are that the above-named prisoner was sentenced on a charge of burglary in June, 1950, to serve a 1-5 year term in the State penitentiary. He was granted a conditional release by. the Board on May 6, 1951 In November, 1952 he was convicted on two burglary charges and sentenced to serve two consecutive terms of 3-5 years each. His conditional release by the ~ 389 Board was revoked and the stipulation hereinbefore described was made by the Board. The Act creating the State Board of Pardons and Paroles (Ga. Laws, 1943, p. 185) provides in Section 13 that: " ... In the event a parolee violates the terms of his parole, he shall be subject to rearrest and/or extradition for placement in the actual custody of the Board to be re-delivered to any prison or public works camps of this State." Section 15 of that Act also provides: " ... A violation of the terms of parole may render the parolee liable to arrest and a return to prison to serve out the term for which he was sentenced." Prior to the creation of the State Board of Pardons and Paroles, power to pardon or commute a sentence of a prisoner was, by the Constitution, in the Governor of this State, and as an advisor to the Governor, the Prison Commission was created. The Governor had no express power to grant paroles to prisoners but this was vested in the Prison Commission, subject to the approval of the Governor. However, the Governor had the authority to grant a conditional pardon to a prisoner (see Muckle v. Clarke, 191 Ga. 202) and used this power in the same manner as the State Board of Pardons and Paroles now conditionally releases prisoners. Practically all the conditional pardons granted by the Governor before this authority was repealed contained the provision that the prisoner should not violate any laws of the United States or this State. There is little difference seen between this conditional pardon granted by the Governor and the conditional releases now given by the State Board of Pardons and Paroles. There being such similarity between the conditional pardon by the Governor and the conditional release by the State Board of Pardons and Paroles, it is felt that the case of Harrell v. Mount, 193 Ga. 818 would control the question here proposed. In that case, Harrell was convicted in Georgia and confined to a penal institution of this State. A conditional pardon was then granted by the Governor to Harrell, one of the conditions being that he would not violate any laws of the United States or of this State. Subsequently, Harrell was convicted of violating a law of this State and the conditional pardon was revoked. The question was then raised as to whether Harrell could be confined in the penitentiary to serve out the maximum time of his first sentence after the time of the original sentence had elapsed. In answering this question the court said: "Where a convict is conditionally pardoned, he may upon breach of the . condition be compelled to serve out the term which remained unserved at the time the pardon was granted and accepted, even though the breach occurred after the date upon which his sentence as fixed by the court would have expired." By the ruling in this case, it is my opinion that the Board has the authority to revoke the conditional release of the prisoner and to remand him to serve the remainder of his maximum sentence. It can be of no difference whether the time is served during the period he was originally sentenced or after that time has elapsed. 390 PARDONS AND PAROLES-Indeterminate Sentences (1) Notwithstanding the Act of 1950 referred to, the Board of Pardons and Paroles still possesses the power to release prisoners on indeterminate sentences. (2) Said board also has the power to require service of more than the minimum sentence, based upon the unsatisfactory prison record of the prisoner. (3) Said board also has power to revoke conditional releases, issued subsequent to the 1950 Act, for violation of the terms of said releases. September 2, 1953 Honorable Charles A. Pannell, Chairman State Board of Pardons and Paroles In the light of the repeal of Code Section 27-2502 (Ga. Laws 1950, pp. 352354) and the re-enactment of said law deleting reference to the Prison Commission, you pose the following questions: 1. Does this Board now have power of release on indeterminate sentences? 2. If so, does it have the power to lengthen the time served on a minimum sentence because of unsatisfactory prison record? 3. Does this Board have power to revoke conditional releases issued subsequent to the 1950 act for violation of terms of said releases? The determination of these questions is of great concern and importance. If the State Board of Pardons and Paroles does not have the authority which is the subject of your inquiry, then the indeterminate sentence law insofar as it relates to a period of confinement greater than the minimum sentence is meaningless. The Superior Court has no authority to revoke or modify any part of the sentence after the expiration of the term in which the original sentence was imposed. See, Shaw v. Benton. 148. Ga. 589, 590 (1); Pulliam v. Jenkins, 157 Ga. 19; Stockton v. The State, 70 App. 17; Long v. Stanley, 200 Ga. 239. Nor does the State Department of Corrections have any authority to release a prisoner prior to the expiration of his maximum sentence (Opinions of the Attorney Gerieral, 1948-49, p. 611). Questions regarding pardons and paroles, therefore, address themselves exclusively to the State Board of Pardons and Paroles. It is true that the act of 1950, repealing Code Section 27-2502 and re-enacting the same in somewhat different form, failed to provide that the Prison Commission could fix rules under which the convict could complete his sentence on parole after the expiration of his minimum sentence. I think the Legislature's failure to re-enact this provision was clearly a recognition of the already existing statutes placing this power in the Board of Pardons and Paroles. The entire purpose of the repeal and re-enactment was to provide judges with the power to probate or suspend sentences, since by the original act it was mandatory that sentences of the jury be applied. However, the failure to re-enact this provision had the effect of further vesting authority in the State Board of Pardons and Paroles, since the old Prison Commission included both the Parole Board and the Department of Corrections. Code Section 77-511 provides, in part, as follows: "Power of Board to grant reprieves, pardons, and paroles. Duty to supervise parolees, aid parolees and probationers, and study cases of prisoners.-The State Board of Pardons and Paroles shall have power to grant reprieves, pardons and paroles, to commute penalties, to remove disabilities imposed by law, and to remit any part of a sentence for offenses against the State, after conviction, ... In the cases which the Board has power to consider, such Board shall be charged 391 witY, the duty of determining what prisoners serving sentences in the jails and prisons and public works camps of this State may be released on pardon or parole, and affixing the time and conditions thereof. The Board shall also be charged with the duty of supervising all persons placed on parole; of determining violations thereof and taking action with reference thereto; of making such ininvestigations as may be necessary and of aiding parolees or probationers in securing employment. It shall be the duty of the Board personally to study those prisoners whose cases the Board has power to consider, who may be confined in the jails, prisons and public works camps of the State, so as to determine their ultimate fitness for such relief as the Board has power to grant.. " This interpretation is supported by the case of Matthews v. Everett, 201 Ga. 730. This decision is followed in the case of Rampley v. The State, 81 Ga. App. 782. I am not unaware of the decision in Pippins, alias Peppins v. State, 85 Ga. App. 288, which affirms my previous statement that Code Section 27-2502 was repealed by Act of 1950. Despite this repeal, the State Board of Pardons and Paroles obtains ample authority from the other statutory provisions referred to previously. A primary function of the State Board of Pardons and Paroles is to determine when a prisoner becomes eligible for release. It arrives at this decision by reference to the files of the State Board of Corrections reflecting the conduct record of the inmate, and by its own investigations. See, Code Sections 77-512, 77-514, and 77-380. While conceding that a prisoner is entitled to release on parole after serving his minimum sentence if he has a continuous record of good conduct, by necessary implication he is not entitled to release at the expiration of minimum sentence if the Board of Pardons and Paroles determines that his record does not reflect good conduct. By Code Section 77-517, the State Board of Pardons and Paroles prescribes the terms of parole, and, among other things, the penalty for violation of the conditions of parole. The Board has ample authority to revoke conditional releases issued subsequent to the act of 1950 repealing and re-enacting Code Section 27-2502. (See, Opinions of the Attorney General, June 16, 1953, to Honorable Charles A. Pannell, and Heard v. Gill, 204 Ga. 261.) It is, therefore, my opinion that all of the questions propounded must be, and the same are, answered in the affirmative. PARENT AND CHILD-Adoption of Japanese Child (Unofficial) The adoption of a Japanese child ty white persons would be illegal under state law. Honorable William McDonald Wheeler February 18, 1953 Replying to your letter relative to your constituent who desires to adopt an illegitimate Japanese child, your attention is called to the provisions of Section 53-312 of the 1933 Annotated Code of Georgia, which provides: "The term 'white person' shall include only persons of the white or Caucasian race, who have no ascertainable trace of either Negro, African, West Indian, Asiatic Indian, Mongolian, Japanese, or Chinese blood in their veins. No person, any one of whose ancestors has been duly registered with the State Bureau of Vital Statistics as a colored person or person of color, shall be deemed to be a white person." Section 53-314 of the 1933 Code of Georgia provides: 392 "When any birth certificate, showing the birth of a legitimate child to parents one of whom is white and one of whom is colored, shall be forwarded to the Bureau of Vital Statistics, it shall be the duty of the State Board of Health to report the same to the Attorney General of the State, with full information concerning the same. Thereupon it shall be the duty of the Attorney General to institute criminal proceedings against the parents of such child for any violation of the provisions of this Chapter which may have been committed." Under the laws of Georgia prohibiting the mixing of races, I believe that an adoption of a person of color, as defined in our statutes, by a white person would not be granted by the courts. PARKS-Acworth Lake Authority (1) The State Department of Parks may transfer its license from the Department of the Army covering certain property, to the Acworth Lake Authority by sublease. (2) There exists express legislative authority for the transfer of state property paid for out of appropriated funds to the Acworth Lake Authority without any additional act of the General Assembly. (3) (a) It would not be legal for a residue of funds from the appropriations made by law to be turned over to the authority by the Department of Parks, but such money may be spent for improvements to said property which is to be subleased to the Acworth Lake Authority. (b) The Department of State Parks is not limited to the expenditure of $100,000 on the improvement of the property above described. (4) The State through the Governor should carry insurance on the buildings constructed with appropriate funds on the above described property, but the sublease may provide that the State be reimbursed for this insurance. (5) Upon the sublease of the above described property, the Department of Parks is relieved of all responsibility with respect to the future operation, maintenance and improvement of the leased property. September 24, 1953 Honorable John M. Mann Chief Engineer Department of State Parks You inquire as to certain matters which will be involved in the tmnsfer of the Lake Acworth State Park from the Department of State Parks to the Acworth Lake Authority. The specific questions asked are: 1. What procedure is necessary for the State Department of Parks to transfer its license from the Department of the Army to the Acworth Lake Authority? 2. Is it possible to transfer state property paid for out of appropriated funds, (buildings, equipment and improvements) on the subject area to the Authority without additional authority from the General Assembly? 3. As a practical proposition it seems almost impossible to expend exactly $100,000.00 on permanent improvements or equipment economically: (a) Would it be legal for a residue of funds from the $100,000.00 appropriated to be turned over to the Authority by the Department of Parks? (b) Would it be legal if this Department expended more than the appropriated funds and turned over all improvements, equipment and buildings to the Authority? 893 4. Will the Authority or the Department of Parks carry insurance on buildings constructed with appropriated funds? 5. Will it be possible for the Department of Parks to be relieved of all responsibility in connection with future operation, maintenance and improvements of the subject area? In answer to the first question the proper procedure for the transfer is a sub-lease from the State Department of Parks to the Acworth Lake Authority. In an act of the General Assembly, approved February 21, 1951 (Ga. Laws 1951, p. 479) as amended by an Act approved February 12, 1952 (Ga. Laws 1952, p. 86) the following was provided: " 'Section 1. That the Director of the Division of State Parks, Historical Sites and Monuments of the Department of Natural Resources is authorized and empowered to sublease, upon approval of the Governor, any property which the Division of State Parks, Historical Sites and Monuments of the Department of Natural Resources has now or may hereafter obtain by lease 'from the United States Government or any agency or department thereof, to any county, municipality or other subdivision of the State, or any public authority or individual citizens of Georgia, upon the same terms and conditions, and for the same period or any part thereof, as such property was leased by the State of Georgia from the United States Government or any agency or department thereof.'" Section 2 of the first act above referred to further provided that the sublease shall be subject to the approval of the agency or department of the United States Government which executed the lease to the state if such approval is desired. The license from the Department of the Army to the State Department of Parks specifically provides that the subject area shall be administered by "the licensee, or by the Acworth Lake Authority, created by an Act of the General Assembly of the State of Georgia approved February 19, 1951, or by the licensee in conjunction with other State or local governmental agencies." It can be seen from this language used in the license that the Department of the Army fully contemplated that the administration of the subject area would be transferred to the Authority and that such transfer was agreeable with that department. On the other hand the Authority is empowered to enter into a sub-lease to secure land for development of the park. The "Acworth Lake Authority Act" approved February 19, 1951 (Ga. Laws 1951, p. 265) provides: "Section 4. Powers.-The Authority shall have powers: "(b) To acquire by purchase, lease, sublease or otherwise, and to hold, lease, sublease, and dispose of real and personal property of every kind and character for its corporate purposes." The second question proposed is answered by the act above referred to (Ga. Laws 1951, p. 479, as amended). This act specifically gives the Director of the State Parks Department the authority to sub-lease property obtained by lease from the United States Government or any of its agencies. When improvements are made or buildings are constructed on such property they become a part of the realty and would naturally go with the realty when said property is sub-leased. The answer to question three, sub-section (a) is no. The General Appropriations Act (Ga. Laws 1951, p. 417) provides allotments of $50,000.00 per year for years 1951 and 1952 for the development of the Acworth State Park. This makes a total of $100,000.00. It is therefore seen that the Legislature specifically intended for $100,000.00 to be spent on such development. However, 394 this money must be spent by the Parks Department since the gratuity clause of the State Constitution prohibits the Department from donating or transferring any funds to the Acworth Lake Authority. It has been called to my attention that the entire amount of $100,000.00 has not yet been expended on the project and therefore it is suggested and advised that the remaining funds be spent before any lease agreement is entered into by the Parks Department. The answer to question three, sub-section (b) is in the affirmative. Although the $100,000.00 was specifically appropriated for the development of the subject area, nothing in the General Appropriations Act limits the amount to be spent on such development to that amount. Therefore, the State Department of Parks, if such department deems it advisable, may expend additional funds out of the general appropriation to the Department of State Parks on this development. However, any such additional funds to be spent on this project must be approved by the Budget Committee. In answer to question four, I refer you to Opinions of the Attorney General, 1951, 1952, p. 80. The opinion found there states in part as follows: " . . . Section 91-402 of the Annotated Code of Georgia, 1933, provides that the governor shall have general supervision over all property of the state, with power to make all necessary regulations for the protection thereof when not otherwise provided for. Section 91-403 of the Code provides that the governor shall keep insured, at one-half their value, all of the public buildings of the state ... Moreover, under the above cited statutory provisions, insurance on public buildings is handled by the governor, through the executive department of the state, and the premiums thereon and losses sustained on said property come within the jurisdiction of the governor through the executive department." Upon the sub-lease of the subject area, the Acworth Lake Authority assumes all duties, powers and obligations pertaining to the development and functioning of the subject area. This is all provided for in the "Acworth Lake Authority Act." On the other hand the Authority is given complete control over said area. Therefore, when the Department of Parks leases the subject area to the Authority said department is released from responsibility in connection with the operation, maintenance and improvement of said area. Provision should be made in the sub-lease so that insurance premiums expended by the executive department as above set out should be repaid thereto by the Authority if this is desired. PEACE OFFICERS-Cash Bonds A member of the Georgia State Patrol or the Georgia Bureau of Investigation may not be authorized by the Judge of any court to accept cash bonds from persons charged with the violation of traffic laws. April 23, 1953 Col. W. C. Dominy, Director Department of Public Safety The 1953 Session of the General Assembly passed a bill (Georgia Laws 1953, p. 331-333) entitled an act to authorize any sheriff or his lawful agent or deputy, or any other county officer charged with the duty of enforcing the traffic laws of this State, to accept cash bonds from persons charged with the violation of said laws, when so authorized by the judge having jurisdiction of such offenses when the same shall occur outside the corporate limits of any municipality of this state, etc. 395 Do the words "or any other county officer" include members of the Georgia State Patrol and Georgia Bureau of Investigation or is it the intent of this law to mean that county enforcement officials only can be authorized by the judge to accept cash bonds for traffic violations outside municipalities? To answer the question herein propounded, it is necessary to turn to the act creating the Georgia State Patrol to ascertain if the State Patrol is a State agency or a branch of the State government, or whether its members are classified as county officers: Code Section 92A-201 states that there is created a division of the Department of Public Safety to be known as a Uniform Division, the members of which shall be known and designated as the Georgia State Patrol. Code Section 92A-101 states that there is created and established as a part of the executive branch of the State of Georgia a department which shall be known as the Department of Public Safety. Therefore, it is very obvious that the Georgia State Patrol, being a division of the Department of Public Safety, is a part of the executive branch of the State of Georgia and as such its members are not county officers. The same conclusion is reached concerning the members of the Bureau of Investigation, since the Bureau is established by the Director of the Department of Public Safety with approval of the Department of Public Safety. Code Section 92A-301. In failing to state that the members of the Georgia State Patrol and Georgia Bureau of Investigation are authorized to accept cash bonds as provided by the Act under discussion, it is manifest that the General Assembly did not intend for them to have this power. This conclusion does not circumvent the purposes of the act, for under the procedure which has always been in use, the members of the State Patrol who have apprehended a person for violating the traffic laws in the state always deliver such person into the custody of the sheriff or his lawful deputy. The sheriff and the lawful deputy now, under the provisions of this act, do not have to hold the person thus apprehended for a statutory bond, but are allowed to accept a cash bond in lieu thereof, when authorized by the judge having jurisdiction of traffic offenses. It is my opinion that the judges of this state having jurisdiction over offenses involving the violation of the traffic laws of this state are not empowered by this act to authorize the members of the Georgia State Patrol and Georgia Bureau of Investigation to accept cash bonds from persons charged with the violation of traffic laws. PEACE OFFICERS-Rewards (Unofficial) There is no law authorizing a peace officer to demand a reward for recovering stolen vehicles made in the line of duty. June 10, 1953 Mr. R. A. Cagle This will acknowledge reclilipt of your letter in respect to rewards to Georgia law enforcement officers for locating and recovering stolen vehicle in this State. There is no Georgia Law authorizing such rewards and certainly no peace officer would be entitled to a reward for recovering a stolen vehicle when such recovery was made in the line of duty. Also, the members of the Georgia State Highway Patrol are specifically 396 prohibited from accepting rewards for recovering property. Unless you have offered rewards for the recovery of stolen automobiles, I am of the opinion that you are under no obligation to pay such rewards. PERSONS-Citizenship (Unofficial) The acceptance by the State of Georgia of an adopted Eurasion child depends upon procedures required to be taken under Federal laws discussed below; said child, to become a citizen of Georgia, must first become a citizen of the United States. Honorable Walter F. George June 15, 1953 With reference to your letter in which you request any information as to whether Georgia will accept the adopted Eurasion child of Sergeant First Class and Mrs. Lloyd Phillips as a citizen, I am submitting the following data. As you know, in order for a person to be a citizen of Georgia, such person must be a citizen of the United States and reside in the State of Georgia. Section 2-125 of the Constitution of Georgia provides: "All citizens of the United States, resident in this State, are hereby declared citizens of this State, and it shall be the duty of the General Assembly to enact such laws as will protect them in the full enjoyment of the rights, privileges and immunities due to such citizenship." The crux of the matter lies in whether the child is or can become a citizen of the United States. The answer to this is found in the Immigration and Nationality Act of 1952 (Public Law 414, Laws of 82nd Congress-2nd Session). Under this act a child born of a Japanese mother and an American father would be a citizen of the United States providing the child was born during wedlock or was subsequently legitimized within the prescribed time. Section 301(a) of the Immigration and Nationality Act of 1952 provides in part: "The following shall be nationals and citizens of the United States at birth: * * * * "(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph." Section 309 of the Immigration and Nationality Act of 1952 provides in part: "(a) The provisions of paragraphs (3), (4), (5), and (7) of section 301 (a), and of paragraph (2) of section 308, of this title shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this Act, if the paternity of such child is established while such child is under the age of twenty-one years by legitimation. "(b) Except as otherwise provided in section 405, the provisions of section 301 (a) (7) shall apply to a child born out of wedlock on or after January 13, 1941, and prior to the effective date of this Act, as of the date Of birth, if the paternity of such child is established before or after the effective date of this Act and while such child is under the age of twenty-one years by legitimation." 397 If neither of these provisions applies to the facts in this case, the child. could acquire United States citizenship through naturalization. The steps to follow in such case are set out in Section 323. Section 323 of the Immigration and Nationality Act of 1952 provides: "(a) An adopted child may, if not otherwise disqualified from becoming a citizen by reason of sections 313, 314, 315, or 318 of this Act, be naturalized before reaching the age of eighteen years upon the petition of the adoptive parent or parents, upon compliance with all the provisions of this title, if the adoptive parent or parents are citizens of the United States, and the child- "(1) was lawfully admitted to the United States for permanent residence; "(2) was aaopted before attaining the age of sixteen years; and "(3) subsequent to such adoption has resided continuously in the United States in legal custody of the adoptive parent or parents for two years prior to the date of filing such petition. " (b) In lieu of the residence and physical presence requirements of section 316(a) of this Act such child shall be required to establish only two years' residence and one year's physical p1esence in the United States during the two-year period immediately preceding the filing of the petition. If the child is of tender years he may be presumed to be of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States." The child's lawful admittance to the United States for permanent residence is a matter which Sergeant and Mrs. Phillips will have to take up with their American Consul in Japan. Under the act this child would be a quota immigrant and thus subject to the United States limitation on annual immigration as set out in Chapter 1-Quota System. I assume that the adoption proceeding referred to in Sergeant and Mrs. Phillips' letter is to take place in a Japanese Court. The former Immigration Act, 8 U.S.C.A. 716, required that the child be adopted in the United States, but as you see there is no such requirement in the present act. Two years subsequent to the child's entry for permanent residence, she would be eligible for naturalization under the act. If so naturalized, the child would be a citizen of the United States and a citizen of the State in which Sergeant Phillips resides. PERSONS-Legal Status of Epileptics (Unofficial) The various laws relative to the legal status of epileptics in this state are collected and discussed. Honorable Roscoe L. Barrow July 6, 1953 This will acknowledge receipt of your letter of June 13, 1953, in which you request certain information concerning epileptics in Georgia. The information that you request will be given in the same order as the questions propounded in your letter. (1) Regulation of marriage of epileptics? The law of Georgia regulating marriage contains no express prov1s1on or exception as to epileptics. The essentials of marriage in Georgia are: that the parties be able to contract; that there be an actual contract and consummation according to law. Generally speaking, persons capable of generally contracting may contract marriage in Georgia. Georgia law further defines epilepsy, stating 398 that it is not to be regarded as a form of insanity, in the sense that a person thus afflicted can be said to be permanently insane; for there may be little or no aberration in the intervals between the attacks. Thus, it is my considered opinion that epileptics may contract freely for marriage in Georgia. (2) Sterilization of epileptics? Georgia law does not have any express provrswn for the sterilization of epileptics. However, Georgia Laws, 1937, page 414, setting up a State Board of Eugenics, state that if in the judgrpent of this Board, procreation by any patient or inmate would be likely to procreate children or a child, who by reason of inheritance would have a tendency to serious physical or mental disease or mental deficiency, that it shall be the duty of the Board to approve the recommendation of the superintendent for the sterilization of such patient or inmate. Thus, if a person who was an epileptic came within the provisions of this law, he could be sterilized as other persons but there is no provision giving this Board the power to sterilize people because they are epileptics per se. (3) Classification of epilepsy as a type of insantity? Georgia law defines epilepsy as being a medical term used to designate a disease of the brain which occurs in paroxysms with uncertain intervals between them. The disease is in the brain, and it is generally organic; but it may be functional and symptomatic of irritations in other parts of the body. Epilepsy is not to be regarded as a form of insanity, in the sense that a person thus afflicted can be said to be permanently insane; for there may be little or no aberration in the intervals between the attacks. (4) Imposition on epileptics of civil disabilities, such as denial of the right to contract? Georgia law places no inhibition on the right of epileptics to contract provided that the contract is made during the period of time when he is normal and not suffering from a seizure of epilepsy. (5) Requirement that physicians report cases of epilepsy? Georgia law does not require physicians to report cases of epilepsy to any State or public health authority as it is not a reportable disease or so classified in Georgia. (6) Denial to epileptics of an opportunity to train for or practice certain kinds of employment? Diligent search discloses no prohibition on epileptics to train for or practice any profession or employment in Georgia. (7) Denial of driver's or chauffeur's licenses to epileptics? In Georgia, discretion is allowed to the Director of the Georgia State Patrol in the issuance of drivers' licenses. It is the procedure of said Director to issue licenses to epileptics in all cases provided they can produce a statement from either a State physician or a private physician that he is capable and qualified to operate a motor vehicle upon the roads of this State. The issuance of licenses to such epileptics is dependent upon the directions of the physician issuing the aforesaid statement; such as, the physician might state that the said epileptic should drive only in daytime and should be prohibited from driving at night. (8) Special provisions under Workmen's Compensation Laws relating to handicapped or disabled persons? Georgia law as decided under the Workmen's Compensation Act states that the epileptic shall receive the same treatment under the law as any other individual. Thus, where an employee that was afflicted with an epileptic condition is seized with an epileptic attack while on the job and in the course of employ- 399 ment and this. attack causes him to fall producing an injury, the Courts have held that this was an accident arising out of and in the course of his employment, regardless of whether or not the epileptic attack was precipitated or induced by excessive exertion peculiar to the ailment of the epileptic employee. (9) Any other laws or regulations affecting the status of epileptics? A diligent search reveals that under the law of Georgia epileptics and similarly handicapped people are accorded all benefits of the law and are in no way discriminated against; but on the contrary, problems are to be absolved in favor of such handicapped person. PERSONS-Marriage Between Japanese and \Vhite Persons (Unofficial) Georgia law prohibits the marriage between a person of the white race and a person of the Japanese race. July 1, 1953 Major Lamar F. Graves, JAGC You ask whether or not a marriage of a white person to a Japanese, contracted outside of Georgia, would be recognized as a valid union, should the parties thereto cohabit within the State of Georgia. Section 53-106 of the Georgia Code of 1933 Annotated provides as follows: "It shall be unlawful for a white person to marry anyone except a white person. Any marriage in violation of this section shall be void." Section 79-103 of the Georgia Code provides the definition of persons of color, as follows: "All Negroes, mulattoes, mestizos, and their descendants, having any ascertainable trace of either Negro or African, West Indian, or Asiatic Indian blood in their veins, and all descendants of any person having either Negro or African, West Indian, or Asiatic Indian blood in his or her veins, shall be known in this State as persons of color." Code Section 53-214 provides as follows: "All marriages solemnized in another State by parties intending at the time to reside in this State shall have the same ~ega! consequences and effect as if solemnized in this State. Parties residing in this State may not evade any of the provisions of its laws as to marriage by going into another State for the solemnization of the marriage ceremony." Code Section 53-312 defines a "white person" as follows: "The term 'white person' shall include only persons of the white or Caucasian race, who have no ascertainable trace of either Negro, African, West Indian, Asiatic Indian, Mongolian, Japanese, or Chinese blood in their veins. No person, any one of whose ancestors has been duly registered with the State Bureau of Vital Statistics as a colored person or person of color, shall be deemed to be a white person." Code Section 53-313 provides the procedure to be followed where a violation of the terms of these statutes has been made. It provides that a report of the violation shall be made to the State Board of Health, where an investigation shall be made and the results turned over to the Attorney General after such investigation. Code Section 53-315 provides that the Attorney General has the duty to enforce the provisions referred to above, in conjunction with the Solicitor General of the Superior Court having jurisdiction over such violation, and if the Attorney General fails or refuses to prosecute such violations, this provision establishes such failure as a ground for impeachment. 400 PRISONS AND PRISONERS-Court Costs Where habeas corpus proceedings are brought against a sheriff holding a prisoner after conviction, such prisoner never came into the jurisdiction of the State Board of Corrections, and, therefore, the county and not the State Board of Corrections is responsible for all court costs. February 4, 1953 Honorable J. B. Hatchett Assistant Director State Board of Corrections I acknowledge receipt of your letter with reference to the court cost in the case of Porch v. Cagle, sheriff. You state that you received a letter dated January 1 from the clerk of the U. S. Court of Appeals in New Or.leans with reference to $25.00 court cost in the above matter. You inquire as to whether or not the State Board of Corrections is subject to the payment of this cost as the appellant in said case was never in the jurisdiction of the Board of Corrections. I received a letter from the c;lerk of the U. S. Court of Appeals, New Orleans, dated January 7, 1953 in which it was stated that there was an item of cost of $25.00 for the docketing of the cause in this matter. My attention was called to Rule 31, Section 3, of the U. S. Court of Appeals which provides that in cases of reversal of any judgment or decree in that court, costs shall be allowed to the appellant. It was further stated that the costs in the U. S. Court of Appeals were taxed against Howard Cagle, sheriff of Pickens County. A sheriff who holds a prisoner after conviction does so pursuant to the judgment of the court and when a habeas corpus is filed against the sheriff prior to the time the prisoner is turned over to the Department of Corrections, the sheriff's county is responsible for all costs which arise out of the conviction and detention of the prisoner. The county may collect any cost f1om the prisoner if he has it. In the case of an indigent prisoner, I am of the opinion that the county must bear the cost. After a prisoner has been turned over to the Board of Corrections pursuant to Code Section 27-2522 and otQ.er sections in Chapter 25 of Title 27, then the Board of Corrections is responsible for all costs incident to detention of the prisoner. The only time the Department of Corrections is responsible for the costs incident to the trial and conviction of any person is when, under Section 77-396, a prisoner in the custody of the Department of Corrections commits some crime for which he is tried. PRISONS AND PRISONERS-Manufacture of Goods The Board of Corrections is prohibited from manufacturing tags in the penal institutions of this State for private sale to any person, including charitable organizations such as the Veterans of Foreign Wars. Hon. R. E. Warren, Director March 4, 1953 State Board of Corrections You request an opinion on the following question: Under the laws of this state, is the Board of Corrections authorized to manufacture tags bearing "MEMBER, VETERANS FOREIGN WARS" and sell them to charitable organization. 401 Code Sec. 77-323 Ann. Code of Georgia, pocket edition, provides as follows: No goods, wares, or merchandise, manufactured, produced, or mined wholly or in part, by convicts or prisoners, except convicts or prisoners on parole or probation, in the State of Georgia or in any other State, shall be sold in this State to any person, firm, association, or corporation; except that nothing in this section shall be construed to forbid the sale of such goods produced in the prison institutions of this State to the State, to be in turn sold by State to public, or any political division thereof, or to any public institution owned or managed and controlled by the State, or any political subdivision thereof." It is, therefore, my opinion that the manufacture and sale of tags by the Board of Corrections to the Veterans of Foreign Wars is prohibited by law. PROFESSIONS BUSINESSES AND TRADES-Architects Where the law prohibits persons from operating as architects without first qualifying therefor but fails to provide a criminal penalty, a court of equity may take jurisdiction of the matter and grant injunctive relief. January 21, 1953 Honorable R. C. Coleman Joint Secretary State Examining Boards You ask my opinion as to whether or not the State Board for Examination, Qualification and Registration of Architects has any legal remedy against Montgomery-Turner and Associates of Rome, Georgia, composed of Mr. Hugh W. Montgomery, Mr. M. E. Turner and Mr. J. V. Keener. As to the complaint against Mr. Montgomery, Mr. Turner and Mr. Keener, which complains that they are operating as architects without complying with the law, I have carefully read the act in regard to this matter and I find that there is no criminal penalty for operating and practicing architecture without being registered. However, under Section 84-302 of the Code, the law provides that no person shall practice architecture in the state without having first qualified as required by this act. Therefore, it appears that these gentlemen are violating the provisions of this law which prohibits the practice of architecture without first being qualified, and it further appears from Section 84-310 that the said board is charged with the duty of enforcing the provisions of this chapter. It is my opinion that where the law prohibits the doing of a certain thing which fixes no penalty, a court of equity might take jurisdiction of the matter and enjoin the people who are operating in violation of the law. However, before filing a petition :for injunction it would be necessary for the petitioner to swear under oath that the complaints set out against Mr. Montgomery, Mr. Turner and Mr. Keener are true. 402 PROFESSIONS, BUSINESSES AND TRADES-Architects Since Georgia law only requires that an applicant for registration as an architect have completed a technical course approved by the American Institute of Architects, the question as to whether a bachelor's degree in architecture is a requisite depends upon whether or not such is required by the American Institute of Architects. May 20, 1953 Honorable R. C. Coleman Joint Secretary State Examining Boards You request my opinion as to whether the State Board for Examination, Qualification and Registration of Architects should require an applicant for registration as an Architect to have a Bachelor of Architecture degree, under the provisions of Section 84-303 (a) of the Annotated Code of Georgia. Section 34-303(a) of the Annotated Code of Georgia reads as follows: "(a) A diploma of graduation or satisfactory certificate from an architectural college or school that he or she has completed a technical course approved by the American Institute of Architects, and subsequent thereto, at least three years' satisfactory experience in the office or offices of a reputable architect or architects." It appears from the statutory provision quoted above, that the main requirement is the completion of a technical course approved by the American Institute of Architects. It further appears that such course must be taken in an architectural college or school. I am of the opinion that the Board should first determine if the diploma of graduation or the satisfactory certificate is from an architectural school, and, secondly, that the technical course completed by the applicant in such school is approved by the Amerian Institute of Architects. If a Bachelor of Architecture degree is a necessity, as far as fulfilling those requirements is concerned, I am of the opinion that the Board should require an applicant to have the Bachelor of Architecture degree. It seems to me, however, that the Bachelor of Architecture degree is not an absolute necessity, but I leave that to the discretion of the Board. PROFESSIONS, BUSINESSES AND TRADES-Dental Hygienists An applicant for license as a dental hygienist in this State need not necessarily have received his or her training in this State under a licensed Georgia dentist. Honorable R. C. Coleman Joint Secretary State Examining Board May 26, 1953 This will acknowledge receipt of your letter of May 22, 1953, in which you ask my opinion on Section 2 of the law governing the practice of Dental Hygienists in Georgia. The second paragraph of your letter reads as follows: "The point we would like clarified is whether or not Section 2 of the Dental Hygienist Law restricts the Board from approving applications of those Dental Hygienists who received their training in other states under a licensed dentist, or would it be necessary that all experience of said applicant be obtained in Georgia under a licensed Georgia dentist." It is my opinion that it is not necessary for the applicant to have received 403 his training, as provided in Section 2 of the Dental Hygienist Law, under a licensed Georgia dentist. PROFESSIONS, BUSINESSES AND TRADES-Embalmers and Funeral Directors Certain provisions and phrases of the Georgia laws dealing with the qualifications of applicants for licenses for embalmers and funeral directors are construed. October 1, 1953 Honorable R. C. Coleman Joint Secretary State Examining Boards You request that we construe the following phrases and provisions of law: "Section 9-of the Funeral Service Law "A resident of Georgia "Section 9-Part 2 "Direct Supervision "Section 18-Licensed funeral directors required to operate establishments.Branch establishments shall be operated by a person holding a funeral director's license, who is in full and continuous charge, and who is a resident of this State." Section 9 of an Act of the General Assembly of 1950, (Ga. Laws 1950, p. 244), deals with the qualifications of applicants for licenses for embalmers and funeral directors, and, among other things, uses the following language: "(1) Each applicant for a license as either an embalmer or funeral director shall be: (a) at least twenty-one years of age; (b) a resident of Georgia; ... " I understand the language to mean exactly what it says; that an applicant, among other things, must be a resident of Georgia at the time of making his application. Part 2 of the same section provides that in addition to the qualifications set out above, an applicant for embalmer's license shall: "(a) have successfully completed a regular course of not less than twelve months in an embalmer's college accredited by the board; and (b) have completed, either before or after such scholastic training, a minimum of twenty-four months of service as an apprentice embalmer under the direct supervision of a licensed embalmer actively engaged in the practice of embalming in this State." It seems to me that the wording of the law in regard to direct supervision is clear and unmistakable and requires no interpretation. Section 18 of the same act above referred to (page 249), reads as follows: "All funeral establishments and all branch establishments shall be actually operated by a person holding a funeral director's license, who is in full and continuous charge, and who is a resident of this State. There shall be conspicuously displayed in all establishments the name of the person licensed to conduct such establishment." Neither do I think this section can be clarified by any interpretation; its provision are unambiguous. 404 PROFESSIONS, BUSINESSES AND TRADES-Practical Nurses (Unofficial) The various laws relating to the licensing and registration of practical nurses are discussed. September 8, 1953 Honorable J. Gordon Young This is in reply to your letter of August 28, 1953, making inquiry as to the 1953 Act in regard to practical nurses, and I here set out your letter. "I have a query in reference to one of the recent laws passed at the JanuaryFebruary Session of the Legislature, 1953, which concerns the licensing of practical nurses, such law appearing in Georgia laws, 1953, page 333. The immediate problem before me concerns a construction of Section 8 of the Act on page 335, which Section contains the definition, method and manner required to qualify as a licensed practical nurse. In reading this Section it occurs to me that there are three conditions under one of which a person must come in order to qualify as a practical nurse, namely: "(a) Study and supervised experience in an approved school and hospital training program "(b) Work under the direction of a licensed physician "(c) or, under the direction of a registered professional nurse. "The facts pertinent to my inquiry are as follows: client has for several years operated a school for practical nursing, with diploma to persons satisfactorily passing such prescribed course. This school is operated under the supervision and direction of a reputable, registered professional nurse. The history of operating indicates that it has been successful. They desire and propose to continue operation under the direction and instruction of a registered professional nurse or nurses. Their usual student enrollment for each six months' course is from 25 to 30 students. "My inquiry is this: "1. Could Section 8 be construed to mean 'A practical nurse is a person . who works and studies under the direction of . . . a registered professional nurse'? "2. If a school of nursing for practical nurses be under the direction and supervision of a registered professional nurse would not this fact qualify such school to do business and to graduate a student therefrom as Licensed Practical Nurse, with the right to use the abbreviation therefor of 'L.P.N.'? Section 8 of the Act of the Georgia Legislature, (Georgia Laws, JanuaryFebruary Session, 1953, page 333), among other things defines a practical nurse as one who works under the direction of a licensed physician or a registered professional nurse. Therefore, the answer to your first question would be in the affirmative. However, I think this only defines some of the things that a practical nurse might be engaged in. The answer to question two would necessarily be in the negative for the reason that Section 2 of the Act above referred to provides that no person shall engage in the practice as a licensed practical nurse without obtaining a license as hereinafter provided. Section 2 of the Act provides as .follows: "Section 2. No person shall engage in practice as a licensed practical nurse without obtaining a license as hereinafter provided: All applicants for a license to practice as a practical nurse shall make application through the Joint Secretary of the State Examining Boards. An applicant for such license shall submit to the Board of Practical Nurse Examiners of Georgia written evidence, verified by oath, and that the applicant is at least eighteen years of age, is of good 405 moral character, is in good physical and mental health, is a citizen of the United States, has completed at least two years in high school or the equivalent thereof which is satisfactory to the board and has successfully completed the course of training for practical nurses approved by the board." It is my opinion that attending the school mentioned in your letter would not necessarily license them as practical nurses. Section 3 of the Act provides as follows: "Section 3. Applicant shall be required to pass an examination, oral, written or practical, or any combination thereof prescribed by the board, and upon successfully passage thereof shall be issued a license to practice as a licensed practical nurse. The fee for such examination shall be ten dollars ($10.00), which shall accompany the application and shall be remitted to the Joint Secretary of the State Examining Boards." I know of no other licensing authority in the State except the Board of Examiners of Practical Nurses of Georgia. PROFESSIONS, BUSINESSES AND TRADES-Regulation of Palmistry by County (Unofficial) Without express statutory or constitutional authorization, a county is without authority to license persons to practice .palmistry within a municipality located in such county. Honorable William T. Roberts October 2, 1953 You request my opinion as to whether or not Macon County has the authority to license persons, to practice palmistry in the City of Ideal. I agree with your opinion as expressed therein. In your letter you state that Macon County in 1944 passed a resolution requiring that anyone practicing palmistry within the county would be required to obtain a county license costing $100 per day. In my opinion this resolution is void. In the first place, the county commissioners of Macon County would not have the right to license the practice of palmistry within the county except by the express legislative act. In the second place, there was in effect at that time an act of the Legislature as codified in Section 92-2013 (Acts, 1935, p. 36) which is as follows: "Each person, firm or corporation engaged in palmistry or in the giving of advice concerning vocational guidance when based solely on the study of the hand, shall pay the sum of $25, to be collected by the tax collector in each county where such business is carried on or conducted, which tax shall be distributed as follows: (1) To the county where collected, $12.50, and (2) to the State, $12.50: Provided, however, that nothing herein shall prevent any municipality by proper ordinance from prohibiting the practice of palmistry." The Act of 1935 was amended in 1947 (Ga. Laws 1947, p. 1136-1137) as follows: "Section l. That Paragraph 56A of the General Tax Act of 1935 (Ga. Laws 1935, p. 11, 35) relating to the licensing and taxing of fortune telling, phrenology, clairvoyance, or other kindred practices, businesses or professions, be and the same is hereby amended by adding after the word 'phrenology' in line 2 of said paragraph the word 'astrology', and by adding at the end of the first proviso of said section, the following provisio: 'Provided, further, that the Board of County Commissioners of any county 406 may by proper order or resolution prohibit, regulate or further tax the practice of fortune telling, phrenology, astrology, clairvoyance, or other kindred practices, businesses, or professions within the territorial limits of the county, outside of the corporate limits of any town, city or municipality in the county. The tax to be imposed by said Board shall not exceed the sum of $1,000.00 per year'. "Section 2. That Paragraph 56B of the General Tax Act of 1935 (Ga. Laws 1935, p. 11, 36) relating to the practice of palmistry and the giving of advice concerning vocational guidance be and the same is hereby amended by adding at the end of said paragraph the following proviso: 'Provided, further, that the Board of County Commissioners of any county may, by proper order or resolution, prohibit, regulate or tax the practice of palmistry in any part of the county located outside of the territorial limits of any town, city or municipality of the county. The tax or license fee levied upon the practice of palmistry shall not exceed the amount of $1,000.00 per year'." This section, as amended, was repealed by an Act of the General Assembly approved February 19, 1951 (Ga. Laws 1951, p. 157, 164). The resolution passed by the board of commissioners was in direct conflict with the general law at the time of its passage, and for that reason is void. The counties of this State have no authority to regulate a business or profession within the corporate limitations of municipalities located therein unless authority for the specific tax or license is granted under the general law or under a constitutional amendment such as was passed giving Fulton County certain powers with reference to the licensing of businesses in Fulton County. The Fulton County constitutional provision is discussed in the case of Fulton County, et al. v. Lockhart, et al., 202 Ga. 878. In my opinion, Macon County could not at its next regular meeting pass a resolution regulating the practice of palmistry within a municipality in the county. PROFESSIONS, BUSINESSES AND TRADES-Pharmacy-Licenses Under the facts related, the Board of Pharmacy Examiners is authorized to issue a license to the named applicant. Honorable Everett Williams November 5, 1953 Chairman State Board of Pharmacy You request me to advise you whether the board is authorized to issue a license to practice pharmacy to a specified person. I have carefully reviewed the sworn testimony given the board at its formal hearing in regard to the subject applicant on September 30, 1953, together with additional affidavits furnished the Board by Dr. J. E. Bedingfield and Mr. E. G. Mullis and the documentary evidence on file with your Joint Secretary, Dr. R. C. Goleman. Section 13 of an Act of the Legislature approved March 8, 1933 (Ga. Laws 1933, pp. 210, 211) deals with the required qualifications of those persons desiring to be licensed as pharmacists and reads as follows: "That from and after January first after the passage of this Act, each applicant for registration as a pharmacist shall not be less than twenty-one years of age, and shall be a graduate of a generally recognized school or college of pharmacy, and in addition shall have had twelve months of practical ex- perience in a drug store or place where physicians' prescriptions are dispensed by a licensed pharmacist registered under the laws of the State of his abode. 407 Provided, however, that this Act shall not apply to those persons, bona fide citizens of Georgia, who at the time of the passage of this Act are actually employed in a place of business which is operated by a licensed pharmacist who is engaged in the compounding and filling of physicians' prescriptions; and who, within six months after the passage of this Act, file with the State Drug Inspector notice of their intention to apply for examination under this exemption; and who, within three years, present themselves for examination; and who file with the Board of Pharmacy evidence of graduation from an accredited high school, and of having had at least three years of practical experience. Provided further, that this Act shall not apply to those persons, bona fide citizens of Georgia, who prior to the time of the passage of this Act have had five or more years of experience in a retail drug.store under the direct supervision of a licensed pharmacist, and who present themselves for examination before the Board of Pharmacy prior to January first, 1934." Beginning on page 10 of the recorded sworn testimony at your September 30, 1953 hearing, the applicant testified under oath that he had made application for examination prior to January 1934, that he filed his application with a member of the Board and paid him the required fee, that he was advised at that time he would be notified when to present himself for examination, and that some time lapsed before he heard from the board, but upon inquiry was permitted to take the examination, which he failed to pass. It appears further under this testimony that he was allowed to take the examination again later and passed. The sworn testimony also establishes the fact that he had had five years or more experience in a retail drug store under the direct supervision of a licensed pharmacist prior to the passage of this act. The applicant's testimony is supported in part by the records on file with the Joint Secretary in full by affidavits of Dr. J. E. Bedingfield and Mr. E. G. Mullis of Dublin. The latter affidavits were .furnished two members of the Board and me after your September hearing. The provision of law requiring an applicant to pay an additional fee, should he fail in his examination and request another, or others, after twelve months, has no application to this case, since that provision is restricted to the question of payment of fees and acts as no bar to the taking of several examinations. It is my studied opinion that the Board would be authorized to license the applicant in view of the documentary evidence and the unimpeached sworn testimony of the applicant and Dr. Bedingfield and Mr. Mullis. To hold other wise would be to place upon me the responsibility of concluding that the applicant and others committed perjury in their sworn statements. There seems to be no conflict of evidence and the documents in possession of the joint secretary, while not complete, fully establish the facts required under the last provision of the act above quoted. PROFESSIONS, BUSINESSES AND TRADES-Pharmacy The State Board of Pharmacy is without authority to grant a license by reciprocity to a person licensed as a pharmacist under Nevada law prior to the Nevada Act of 1947 raising the standards for applicants for such licenses. Dr. R. C. Coleman, Joint Secretary State Examining Boards Your letter reads as follows: September 8, 1953 408 "I have been requested by the Georgia State Board of Pharmacy to secure from you an opinion as to whether or not the Board would be within their legal authority under Section 84-1315 to grant a license to an applicant from the state of Nevada by reciprocity. "I understand that the applicant secured his Nevada license by a written examination before the State Board of Pharmacy of Nevada." An Act of the Nevada Legislature, approved April 1, 1933, among other things, provides: "Licentiates in pharmacy must be such person as possess the fundamentals of a high-school education and who have had at least five (5) consecutive years' actual experience in drug stores where the prescriptions of medical practitioners have been compounded, and who have passed a satisfactory examination before the state board of pharmacy; provided, however, that the board of pharmacy may in its discretion grant certificates of registration, without further examination, to graduates of such colleges and schools of pharmacy as shall be approved by the board of pharmacy. Said board of pharmacy may also grant certificates of registration to the licentiates of other states or territories as it may deem proper. Practicing pharmacists are persons who, at the passage of this act, are registered as such." Section 84-1313 of the Georgia Code Annotated provides, among other things, as follows: "Each applicant for registration as a pharmacist shall not be less than 21 years of age, and shall be a gradaute of a general recognized school or college of pharmacy, ... " (Emphasis added) Code Section 84-1315 provides, as follows: "The Board of Pharmacy may in its discretion grant licenses as pharmacists to persons who shall furnish proof that they have been registered as such in some other state, and that they are of good moral character: Provided, that such other State in its examination shall require the same general degree of fitness as is required by the examination in this State." (Emphasis added) It is my opinion that. the Board would be without authority to grant a license to a person licensed under the above Nevada Act. In 1947 the Nevada law was amended raising the standards for applicants to become registered pharmacists, and it is my opinion that a person licensed under the Jatter Nevada act might, in the discretion of the board, be granted a license. PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers A licensed real estate broker may establish branch offices, and in so doing, is not required to give bond and fee for each such branch office. May 28, 1953 Honorable Leo F. Griffin, Chairman Georgia Real Estate Commission Your letter reads as follows: "The Commission desires an opinion on whether a licensed broker can establish a branch office under a name other than the name of his principal office and whether a fee and bond should be required for each additional office established." Your letter poses two questions: 1. May a licensed real estate broker establish more than one office under different names? 409 It is my opm10n that a licensed real estate broker may establish branch offices under different names, provided that he complies with Chapter 106-3 of the 1933 Code of Georgia, Cumulative Pocket Part, which deals with trade name registration. 2. Is the Real Estate Commission authorized to require an additional bond and fee for each individual place of business established by the broker? It is my opinion that a real estate broker is only required to pay one fee .and make one bond, notwithstanding the fact that he may operate several dif- ferent offices PROFESSIONS, BUSINESSES AND TRADES-Real Estate Licenses (Unofficial) A cemetery corporation selling rights of interment in cemeteries is required to have a license issued to them by the Georgia Real Estate Commission. Honorable J. Walter Owens July 13, 1953 This will acknowledge receipt of your letter the first paragraph of which reads as follows: "I am forming a Cemetery Corporation in Muscogee County, Georgia on the perpetual care plan. I have .run into the Section of the Code dealing with Brokers and Salesmen at 84-1401, and 1402, and a recent Rule or Regulation No. 18 of the Georgia Real Estate Commission which raises the question in my mind whether it is necessary for men selling rights of interment in cemeteries to have a license issued by the Commission?" Section 84-1402 of the Code of Georgia reads as follows: "Whenever used in this Chapter, 'real estate broker' means any person, firm or corporation, who, for another and for a fee, commission or other valuable consideration, sells exchanges, buys, rents or offers or attempts to negotiate a sale, exchange, purchase or rental of any estate or interest in real estate, or collects, or offers or attempts to collect rent for the use of real estate; also any person, firm, or corporation advertising, through signs, newspapers or otherwise, as operating or conducting a real estate office or real estate business: Provided, however, this provision shall not be construed to include the sale or subdivision into lots by the bona fide fee simple holder of any tract or parcel of land; also any person, firm, or corporation subdividing a tract of land into 20 or more lots, or offering for sale a tract of land already subdivided into 20 or more lots, where such person, firm, or corporation sells or offers any of said lots for sale through salesmen, whether such salesmen be regularly or occasionally employed, and whether they be paid salaries or commissions. " 'Real estate salesman' means a person employed by a licensed real estate broker to sell or offer for sale, to buy or offer to buy, to negotiate the purchase, sale or exchange of real estate, or to lease, rent, or offer to lease, rent or place for rent any real estate for or on behalf of such real es.tate broker; also any person, other than bookkeepers and stenographers, employed by any real estate broker, as that term is defined in this section." I am of the opinion that a person engaged in the business to which you refer falls within the provision of the above quoted statute and would be subject thereto. 410 PROFESSIONS, BUSINESSES AND TRADES-Real Estate Deals A person who procures a purchaser for real estate, but who does not accept any compensation therefor, does not violate the law requiring all real estate dealers to first procure a license, notwithstanding the fact that such person does charge a fee for his services in procuring a loan incident to the purchase of such property. Honorable Leo F. Griffin, Chairman Georgia Real Estate Commission November 18, 1953 You state that you received a letter from the secretary of the Athens Real Estate Board complaining about Mr. Oscar Hawks selling real estate without a license. You also state that you sent your investigator, Mr. E. C. Wideman, to Athens to make an investigation; that in making this investigation Mr. Wideman contacted Mrs. Rose ,Miller, who was the purchaser of the property in question; that Mrs. Miller stated to Mr. Wideman that she paid Mr. Hawks Hawks a commission on the transaction, and she furnished Mr. Wideman with a check payable to Mr. Hawks for $286.50, and on this check she had typed, "Commission Purchase of 169 Barber Street, Athens, Georgia." In your letter you say that Mrs. Miller now says that Hawks made no charge for his services, but that she paid to him $286.50 for obtaining a loan. If this $286.50 was paid for obtaining a loan, and Mr. Hawks had nothing to do with negotiating the sale of the real estate in question and did not hold himself out as a real estate broker, and if it is true that Mrs. ,Miller paid him the $286.50 for his services in assisting her in procuring a loan, it is my opinion that you would be unable to get a conviction for any criminal act on the part of Hawks, and it would be unwise to swear out a criminal warrant against Hawks. You state that the brokers in Athens feel that they deserve protection from this type of operation, and you then ask my suggestion as to your procedure. The Real Estate Commission has no authority over persons who are not licensed by the Real Estate Commission. However, if it is your desire to institute criminal prosecution in this matter, you may place all of the facts before a grand jury of Clarke County. PROFESSIONS, BUSINESSES AND TRADES-Warm Air Heating Contract Law The amendment of 1950 to the warm air heating contract law does not apply to Spalding County. December 29, 1953 Dr. R. C. Coleman Joint Secretary State Examinig Boards You request my opinion as to whether or not Spalding County comes under the Warm Air Heating Contract Law. The amendment of 1950 (Ga. Laws 1950, p. 325) to that Act provides, "That from and after the effective date of this Act, all counties in the State of Georgia having a population of not less than twenty-eight thousand (28,000) and not more than twenty-nine thousand (29,000) inhabitants according to the United States census of 1940 and any future United States census shall come within the terms and provisions of this Act, and shall be subject to regu- 411 lations by the board herein provided for to the same extent and for the same purposes as those counties originally included." According to the United States census of 1940, Spalding County had a population of 28,427. At that time Spalding County would have come within the amendment. However, in 1950 Spalding County, according to .the United States census, had a population of 31,045. In the case of Sumter County v. Allen, clerk: et vice versa, 193 Ga. 171, the Court had before it practically the same question posed in your letter of December 23. The Court said, "On proper construction of the foregoing statute, it was not intended to apply to any county which according to the last preceding United States census does not have a population within the prescribed limits." It is my opinion that the Warm Air Heating Contract amendment of 1950 does not now apply to Spalding County. PUBLIC AGENCIES-Public Hearings (Unofficial) Other than a constitutional provision requiring that all official meetings of county boards of education be open to the public, there are no statutory or other constitutional provisions requiring that members of public agencies be open to the public. September 28, 1953 Honorable John Ben Shepperd You request information as to whether the State of Georgia has legislation requiring meetings of public agencies to be open to the public. There is no general statute nor constitutional provision requiring such agencies to open their meetings to the public. A review of the laws applicable to the several executive departments and state agencies, as well as the laws applicable to municipal and county governments, discloses that, with one exception, no such requirement is made. The acts of the Legislature are simply silent on this subject. The one exception, mentioned above, is found in the Georgia Constitution of 1945, Article VIII, Section VIII, Paragraph I (Codified, Georgia Code, 1945 Supplement, Section 2-7101), as follows: "All official meetings of County Boards of Education shall be open to the public." My research findings are limited to what may be termed "executive meetings" of state agencies as distinguished from administrative hearings of a quasi judicial or investigatory nature. PUBLIC DEFENSE-Eminent Domain The Department of Public Defense or the state may legally exercise the powers of eminent domain to acquire real estate necessary to be used as training headquarters of the Brunswick National Guard. October 19, 1953 Maj. Gen. Ernest Vandiver The Adjutant General In your letter you inquire whether or not the Department of Public Defense or the State may legally exercise the powers of eminent domain in order to acquire certain real estate which you have determined to be necessary to be 412 used as training headquarters for the Brunswick Unit of the State National Guard. The power of eminent domain is contained in Section 2-301 of the Constitution of the State of Georgia, which reads as follows: "2-301. Paragraph I. Private ways; just compensation.-In case of necessity, private ways may be granted upon just compensation being first paid by the applicant. Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid." This matter is further dealt with by the constitutional provisions contained in Section 2, Chapter 2-25, of the Georgia Constitution of 1945. Section 2-2501 reads as follows: "2-2501. Paragraph I. Abridgement, etc., of right of eminent domain.-The exercise of the right of eminent domain shall never be abridged, nor so construed as to prevent the General Assembly from taking property and franchises, and subjecting them to public use." Section 2-2502 reads as follows: "2-2502. Paragraph II. Abridgement, etc., of police power.-The exercise of the police power of the State shall never be abridged, nor so construed as to permit the conduct of business in such manner as to infringe the equal rights of others, or the general wellbeing of the State." Pursuant to the constitutional provisions above cited, the Legislature provided the authority for exercising condemnation in Code Section 36-101, which reads as follows: "36-101. Right of eminent domain defined.-The right of eminent domain is the right of the State, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the State on account of public exigency and for the public good; thus, in time of war or insurrection the proper authorities may possess and hold any part of the territory of the State for the common safety; and in time of peace the legislature may authorize the appropriation of the same to public purposes, such as the opening of roads, construction of defenses, or providing channels for trade or travel." From the foregoing, therefore, it is my opinion that the State may legally acquire the property which is the subject matter of your letter, by exercising its condemnation against the owner thereof. PUBLIC DEFENSE-National Guard Employees and Property (1) Clerks and caretakers hired for the purpose of conserving property issued to National Guard units are employees of the United States and not of the State of Georgia, and so being, are not entitled to retirement benefits or workmen's compensation payments under State law. (2) Title to property issued to the National Guard units remains in the United States and does not pass to the individual States. May 28, 1953 Honorable Ernest Vandiver, Jr. The Adjutant General I am in receipt of your request for an opm10n regarding the status of clerks and caretakers hired for the purpose of maintaining property issued to National Guard units, employed pursuant to National Guard Regulation No. 75-16 of December 29, 1947, and as to the status of property issued to National Guard units. 413 You asked specifically whether such employes are employees of the United States or of the State of Georgia while in possession of the National Guard. In regard to your first question relating to the "employee status" of the accounting clerks and caretakers maintaining property of the National Guard, National Guard Regulation No. 75-16 dated December 29, 1947, promulgated by the Secretary of the Army pursuant to Section 83 of National Defense Act of 1916, delegates the authority to employ, discharge, establish duties and work hours and fix rates of pay not in excess of maximum rates authorized by the Chief of the National Guard Bureau of such employees to the Adjutants General of the various States. Salaries of such employees are fixed by the Adjutants General in an amount not to exceed the maximum authorized by the National Guard Bureau for such positions and such salaries are paid entirely out of Federal funds. Thus, it appears that such employees are employees of the United States and the Adjutants General of the several States supervise and regulate their pay and activities as agents of the National Guard Bureau. Furthermore, qualifications, including aptitude tests, are established by regulations of the National Bureau; leave, credits and allowances are established by National Bureau regulations and monthly reports are required to be made by Adjutants General to the National Guard Bureau on Federal forms showing all employees paid from Federal funds. In addition, the Courts of the United States have held in suits upon claims under the Federal Tort Claims Act arising by virtue of acts of negligence by members of National Guard units not in active service, but in which such members were employed and acting within the scope of their duty as caretakers, that such persons are employees of the United States within the meaning of the Federal Tort Claims Act. Holly v. U. S., 192 F. 2d 221; Elmo v. U. S., 197 F. 2d 230; U. S. v. Duncan, 197 F. 2d 233. Also, a letter of April 9, 1948 from the Federal Security Agency, Bureau of E1pployees' Compensation, to the Chief, National Guard Bureau, and circulated to the Adjutants General of the various States in Logistics Bulletin No. 7 under date of May 11, 1948, by the Chief, National Guard Bureau, states that such employees are covered under the United States Employees' Compensation Law for injuries or death sustained while in the performance of their duties as civilian caretakers. I am further advised that the Acting United States Property and Disbursing Officer for Georgia in a letter to you under date of May 22, 1953, has advised you that the provisions of Logistics Bulletin No. 7 have been placed in effect and are presently being followed by the U.S.P. & D. 0. of Georgia, and claims under the Act have been paid within this State. I am, therefore, of the opinion that such employees are employees of the United States and not of the State of Georgia. In regard to your second question as to the status of property in possession of the National Guard issued by the Federal Government, I deem it sufficient to state that Section 47 of Title 32 of the United States Code provides that all military property issued to the National Guard as provided therein shall remain the property of the United States and that the States shall be chargable and held accountable for any loss, damage or destruction of such property. I am advised by you that all such property is released in the care of bonded officers and that when the Federal Government incurs any loss of such property or damage to same, the State pays such claim and recovers the amount thereof from the bond of the responsible officer. In view of the foregoing, it is, therefore, my opinion that the employees 414 referred to herein are employees of the United States and not of the State of Georgia and as such would not be authorized to participate in any retirement system for State employees nor would they be entitled to any benefits under the State Workmen's Compensation Act. I am of the further opinion that title to Federal property issued to National Guard units remains in the United States and the State utilizes and employs such property without any claim to title as against the United States. PUBLIC DEFENSE-National Guard (1) The Governor may not delegate his authority to convene general courtsmartial. (2) A general officer of the National Guard does not have the power to exercise non-judicial punishment, as the Uniform Code of Military Justice does not apply to personnel in the National Guard. The Adjutant General January 13, 1953 You request an opinion on the following subjects: (1) Whether or not the governor may delegate authority to a general officer of the National Guard to exercise general courts-martial jurisdiction; and (2) Whether or not a general officer has the power to exercise non-judicial punishment as provided by Article 15 of the Uniform Code of Military Justice, 50 U.S.C.A. 571. In response to your first query, I am of the opinion that under Section 23 of the Military Forces Reorganization Act of 1951, the governor may not delegate his authority to convene general courts-martial. While much latitude is granted the governor in the making of orders and rules and regulations for the management of the Military Forces of this State by the Military Forces Reorganization Act of 1951, the Legislature did not expressly grant the governor authority to delegate his exercise of jurisdiction in the convening of general courts-martial. It is universally held. that in construing the powers to be exercised by courts, strict and narrow construction is applied in determining jurisdiction. Therefore, I conclude that only the governor can convene general courts-martial. As to your second question, I am of the opinion that a general officer of the National Guard does not have the power to exercise non-judicial punishment under Article 15 of the Uniform Code of Military Justice. The Uniform Code of ,Military Justice, 50 U.S.C.A. 551, et seq. has no applicability to personnel in the National Guard of Georgia. Article 2 of the Uniform Code of Military Justice sets forth those persons who are subject to the provisions of that Code. The legislative history of this act clearly shows that it was not intended that the National Guard Units of the respective states should be subject to the code except at such times as when in the service of the United States. See, 1950 U. S. Code Cong. Service, p. 2222. While it is provided by the Military Forces Reorganization Act of 1951 (Ga. Code Ann. 86-424) that the proceedings of courts-martial for the National Guard "shall follow the forms and mode of procedure prescribed for said similar courts as is contained in the Manual of Courts-Martial," I am of the opinion that this refers only to procedural aspects of courts-martial and not to the jurisdiction or power to punish, which I am of the opinion is limited to those powers as fixled by statute. 415 It should be borne in mind that the National Defense Act of 191&, as amended, established a system of courts-martial for the National Guard, 32 U.S.C.A. 91 et seq., which is still of force and the Georgia Military Forces Reorganization Act of 1951 by Section 23 (Ga. Code Ann. 86-424) has adopted in substance the provisions of the National Defense Act of 1916. PUBLIC DEFENSE-Donations by Municipalities Municipalities may legally donate money to the state for the purpose of constructing or purchasing military armories for use by local military units. General Ernest Vandiver Adjutant General December 4, 1953 I am pleased to acknowledge your request as to whether a municipality has authority to donate money to the State of Georgia for the purpose of constructing or purchasing a military armory. Georgia Code Anotated 86-804 (Supplement) provides as follows: "The governing authorities of the several cities, towns and counties are authorized to make such appropriations from city or county funds for the support and maintenance of local military units and organizations as, in their discretion, they may deem wise and expedient." Georgia Code Annotated 86-804 (Supplement) provides as follows: "Each and every county, municipal corporation, and political division of this State is hereby authorized to appropriate money, and to lease, lend, sell or donate property, and without limiting the generality of the foregoing, including army encampments, airports, landing fields, or air bases, and to lend credit, for purposes of local, State, or national defense, to the State of Georgia, and/or to the United States." Under the above authority, it is my opinion that a municipality could appropriate funds in cooperation with the State of Georgia and the Federal Government for the purpose of securing an armory to support and maintain local military units and organizations of the municipality. PUBLIC DEFENSE-Interdepartmental Transfer of Real Property The interdepartmental transfer of real property is an administrative procedure which may be executed by executive order of the Governor. April 6, 1953 Col. Charlie F. Camp Assistant Adjutant General Department of Defense You request that I advise you as to proper legal procedure to be followed in transferring certain property in the City of Milledgeville presently under the control of the Georgia Forestry Commission to the State Department of Defense for the purpose of providing facilities for National Guard units in that city and construction thereon of an armory from joint State and Federal funds. As pointed out in my opinion of March 29, 1949, to the Adjutant General (Opinions of the Attorney General 1948-49, p. 657), interdepartmental transfer of real property is an administrative matter and such property may be transferred by executive order of the Governor. 416 PUBLIC FINANCE-Audits (Unofficial) The various laws relating to the making of audits and financial reports by state and county officials are discussed. February 18, 1953 Honorable C. J. Broome, Jr. You request information relative to laws reqmrmg publication of financial statements and audits by boards handling public funds. Your letter does not name or point out any specific board or agency that you are particularly interested in, and, therefore, in view of the fact that there is no general law which covers all boards, bureaus, and agencies of the various divisions of State, County, and Municipal Governments, I probably will not be able to give you any specific statute without further information. However, insofar as the Departments of the State Government are concerned, the State Auditor audits, prepares, and publishes, under Section 40-1805 of the 1933 Annotated Code of Georgia, an audit and financial statement of every department, bureau, board, and agency expending State funds. This Code Section provides that a copy of each such audit shall be made available to the Press of the State. The State Auditor, under Section 40-1812, is also required to audit and make public the books and accounts of the county superintendents of schools and treasurers of local school systems and of municipal systems, and all other schools receiving State aid. Under Section 23-1015 of the 1933 Annotated Code of Georgia, under Subsection 7 thereof, it is provided that the county treasurers of each county of Georgia shall exhibit to the first grand jury at the first session of the superior court of each year, a full statement of the condition of the county treasury at that time, and on the second Monday in January, annually, to file with the ordinary a full statement of his account, accompanied by his vouchers for the preceding year, together with his estimate of the indebtedness of the county for the ensuing year, and the means of providing therefor, and to place his books before the grand jury or the ordinary for examination when called upon. Section 23-1201 of the 1933 Annotated Code requires the ordinaries, county treasurers, clerks of the superior courts, and the sheriffs of the various counties to make a return under oath to the grand juries of their respective counties on the first day of each term of the superior court, setting forth a just and true statement of the amount of money received by them belonging to the county and the source from which the same was received; also, their expenditures, accompanied with their proper vouchers. The above cited Sections are not all-inclusive, and I might call to your attention the fact that in a great number of the various counties there has been special legislation which required certain officers of the county, especially the county commissioners, to make itemized statements of the financial transactions of the county at certain periods of the year, and to publish them in the official county organs. 417 PUBLIC HEALTH-Licensing of Hospitals, etc. Under Sections 99-1701 and 99-1707 of the Code, the State Board of Health has licensing authority over an institution which furnishes food and shelter to four or more persons unrelated to the proprietor, and in addition, furnishes some treatment or services which meet some need beyond the basic provisions of food, shelter, and laundry. Honorable Alan Kemper, Director June 10, 1953 State Department of Public Welfare I am pleased to acknowledge your letter of June 8, 1953, in which you state as follows: "Because the Federal amendment to the Social Security Act, requiring the establishment and maintenance of a State Standard-Setting Authority or Authorities for institutions if public assistance payments are made to persons in institutions, is effective July 1, 1953, it is necessary that we submit plan material as outlined in the Handbook of Public Assistance, Part IV-8200, or give written assurance that the requirement will be in full force and effect as of July 1, 1953, and that we give legal citations on which to base such assurance. "In order to comply with these Federal regulations, it is necessary that you advise me if an institution defined as follows comes under the licensing authority of the State Department of Health as set forth in Code Sections 99-1701 and 99-1707: "'An institution or establishment which furnishes food and shelter to four or more persons unrelated to the proprietor, and in addition, provides some treatment or services which meet some need beyond the basic provisions of food, shelter, and laundry.' " Section 99-1701 of the 1933 Code of Georgia provides: "In addition to the powers and duties now vested in and imposed upon the State Board of Health by existing laws, the said Board shall have power and authority to make and promulgate reasonable rules and regulations for the protection of the health and lives of inmates and patients of hospitals, sanatoria, infirmaries, maternity homes, nursing homes and other institutions where persons are received for treatment, examination, maternity care or nursing care in this State, except that such authority shall not include the offices of physicians or others practicing the healing art unless more than one bed are provided in such offices for overnight care of patients.'' Section 99-1707 of the 1933 Code of Georgia provides: "Within six months after the State Board of Health shall have adopted the rules and regulations provided for in sections 99-1601 and 99-1603, all persons operating or in charge of any hospital, sanatorium, infirmary, maternity homes, nursing home or similar institution shall file an application for a permit to operate the same on a form to be supplied by the State Board of Health, and thereafter no hospital, sanatorium, infirmary, maternity home, nursing home or similar institution shall operate in Georgia without a permit issued by the State Board of Health. Such permit shall at all times be prominently displayed in a conspicuous place in the building." It is my opinion that the provisions of the above cited statutes, relating to "other institutions where persons are received for treatment, examination ... or nursing care in this State," would include "an institution or establishment which furnishes food and shelter to four or more persons unrelated to the proprietor, and in addition, provides some treatment or services which meet 418 some need beyond the basic provisiOns of food. shelter and laundry, to such persons because of illness or physical infirmity or advanced age, and are in need of institutional care" and that the State Department of Health is empowered, under the provisions of Sections 99-1702 and 99-1707, to adopt and promulgate reasonable rules and regulations which in its judgment are necessary to protect the health and welfare of said inmates and set out the kind and quality of buildings, equipment and facilities which are necessary in order to properly care for the health, welfare, and safety of such inmates, and to issue permits to operate such institutions or establishments meeting such requirements. PUBLIC OFFICERS-County Board of Registrars (Unofficial) Where no successors to the county board of registrars have been appointed and qualified, the incumbent members are by law entitled to serve until their successors .are appointed and qualified. Honorable John D. McCullough August 28, 1953 I am pleased to acknowledge receipt of your letter directed to the Secretary of State and referred by him to me requesting advice as to what should be done in the event no successors have been appointed and qualified to succeed members of the County Board of Registrars at the expiration of their term of office. Your attention is called to the following pertinent part of Section 34-106 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Part), which provides: " ... Said appointment shall be for a term of four years and the appointees shall hold office until their successors are appointed and qualified.... The first appointees hereunder shall have a five-year term ending in 1953. . . . " (Underscoring supplied) Where an officer has been appointed or elected to an office which provides that he shall serve until his successor is elected or appointed and qualified, such officer continues to perform the duties of his office until his successor has been appointed or elected and qualified, although his term has expired: This rule is based upon the reasoning that there should always be a legal holder to a public office. PUBLIC OFFICERS-Indictment (Unofficial) A subpoena requiring the production of certain records of the Board of Pardons and Paroles is invalid where the statutory provisions relative to the indictment of public officials have not been complied with. Mr. W. M. Tribble October 19, 1953 I have before me a subpoena directed to Mrs. Rebecca Rainey to appear and produce certain records before your Grand Jury on October 26, 1953. I note that this subpoena shows on its face that it is issued in connection with the case of the State of Georgia v. Charles Pannell. As you know, Mr. Pannell is Chairman of the Pardon and Parole Board and hence a State official. I wish to invite your attention to Code Section 40-1617, Georgia Code An- notated, Supplement, which reads as follows: 419 "Before an indictment against any State official charging him with misfeasance or malfeasance in office shall be laid before a grand jury, the rights provided in Section 89-9908 relating to county officials shall be afforded the said State official and the Attorney General of Georgia shall be notified of such contemplated action, by the solicitor general of the county wherein the grand jury shall convene.", and Section 89-9908, as follows: "An indictment under the preceding section shall specifically set forth the merits of the complaint, and a copy thereof shall be served on the defendant before it is laid before the grand jury. The prosecutor and the defendant, and their witnesses, shall have the right of appearing before and being heard by the grand jury. The indictment, if found true by the grand jury, shall, as in other cases, be tried by a petit jury." This is to apprise you of the fact that I have not received any information concerning the above mentioned case from the Solicitor General or from any other official either acting in his stead or on behalf of the Grand Jury. These sections are jurisdictional in nature and compliance with them is necessary in order to have a valid indictment. PUBLIC OFFICERS-Sales to Public Institutions (Unofficial) The branch manager of a business, which manager is also a member of the local County Board of Education, may not, in behalf of his company, sell supplies and equipment for public school use. Honorable W. A. Early September 25, 1953 I am pleased to acknowledge your request of September 23, 1953, as to whether a national concern whose local branch manager is a member of the local county board of education, can sell supplies and equipment for public school use. As you noted in your letter, Georgia Code Annotated Section 32-949 prohibits a member of the county board of education from selling supplies or equipment to any county board of education for public school use. In addition, Georgia Code Annotated Section 32-9908 provides that the violation of this prohibition is a misdemeanor. There are numerous cases in Georgia applying this rule of common law to all public officials regardless of any specific statutory provision. In Morntgomery vs. City of Atlanta, 162 Ga. 534 (see also 140 ALR 344), a contract between Atlanta and a corporation, in which a city officer owned stock, was held to be null and void. The Court said: "No public agent shall have the opportunity to be led into the temptation to make profit out of the public business entrusted to his care, by contracting with himself, directly or indirectly, in respect to such business. Mayor & c. of Macon v. Huff, 60 Ga. 221; Hardy v. Gainesville, 121 Ga. 327 (48 S.E. 921); Byrd v. Cook, 146 Ga. 657 (92 S.E. 61); Twiggs v. Wingfield, 147 Ga. 790 (95 S.E. 711, L.R.A. 1918E, 757); Turner v. Atlanta, 160 Ga. 216 (127 S.E. 652); Burkett v. Athens, Tenn. Ch. App., 59 S.W. 667. It does not alter the case that Inman did not vote for the ordinances relating to the laying of this pavement, and that he did not use his influence to induce other members of the general council to vote therefor. The fact that he did not take any part in securing this contract for his corporation does not change the situation. The City of Atlanta and 420 its citizens were entitled to have this councilman exercise his administrative and executive ability in securing the best contract that could be had for the laying of this pavement, and to see that the pavement came up to the plans and specifications under which it was laid, and that the terms of the contract were faithfully performed. This he could not do if he were a party at interest under the contract. Inaction on the part of the councilman in this respect amounted to a violation of his duty to the public. . . This principle applies. although the contract is fair and free from fraud. Public policy will not uphold it. Macon v. Huff, supra. The contract will not be upheld by reason of the fact that the public has received a benefit thereunder." 43 American Jurisprudence 299 and 300 provides in part as follows: "A contract entered into by a board with one of its own members is void, or at least voidable, even in the absence of a statutory prohibition. The reason is that in such case the member's public duty and his private interests are directly antagonistic. It matters not if he did in fact make his private interests subservient to his public duties." "The general rule is to the effect that the interest of a public officer as stockholder in a corporation entering into a contractual relation with the public is a prohibited interest in the transaction within the meaning of statutory provisions in substance prohibiting a public officer from being interested directly or indirectly in any contract with the public, and of the common-law principle against such interest, based on public policy, of which such statutory provisions are the concrete expression. A stronger case of interest exists where public officers are not only st~ckholders but also officers of corporations with which the public has attempted to enter into a contract." It is my opinion that the same reasoning as to a stockholder would be applicable to the local branch manager. I say this because of the strictness of the common law in such a situation. PUBLIC REVENUE-Ad Valorem Taxation of Hospital Authorities The property of hospital authorities constructed under the provisions of the hospital authority law is not subject to liability for ad valorem taxation. Honorable W. Harvey Atkinson Director, Property Tax Division March 30, 1953 You request an official opinion with respect to the liability for ad valorem taxes of a hospital constructed under the hospital authority statute and the Burton Act. Section 92-201 of the Annotated Code (1951 Cumulative Pocket Supplement) contains the following provision: "The following described property shall be exempt from taxation, to wit: All public property; places of religious worship or burial; all institutions of purely public charity; hospitals not operated for the purpose of private or corporate profit and income; all buildings erected for and used as a college, nonprofit hospital, ... " (Acts 1946, p. 12; 1947, p. 1183). The above-quoted Act was enacted under the authority of Article VII, Session VII, Paragraph IV of the Constitution of Georgia of 1945. Section 99-1506 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Supplement), which is a part of the Hospital Authorities Law, is as follows: 421 "No authority shall operate or construct any project for profit, and shall fix rates and charges consistent with this declaration of policy and such as will produce revenues only in amounts sufficient together with all other funds of the authority to pay principal and interest on certificates and obligations of the authority; to provide for maintenance and operation of the project and to create and maintain a reserve sufficient to meet principal and interest payments due on any certificates in any one year after the insurance thereof and to provide reasonable reserves for th6 expansion of the facilities or services of the authority." It will be observed from the preceding section of the Hospital Authorities Law that hospitals operated under and by authority of the act are not permitted to operate for the purpose of private or corporate profit and that the hospital is a non-profit hospital. I am therefore of the opinion, under the authorities quoted herein, that the property of hospital authorities constructed under the provisions of the hospital authorities law would not be subject to liability for ad valorem taxes. PUBLIC REVENUE-Taxability of Vehicles Owned by Housing Authority (Unofficial) Vehicles belonging to the Housing Authority of the City of Waycross are not subject to ad valorem taxation. August 25, 1953 Honorable C. V. Stanton You inquire as to whether or not an automobile owned by the Housing Authority of the City of Waycross is subject to ad valorem taxes. The word "property" includes real and personal property. I am therefore of the opinion that an automobile belonging to the Housing Authority of the City of Waycross would not be subject to ad valorem taxes. I base this opinion upon Section 99-1132 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Part), which is as follows: "The property of an authority is declared to be public property used for essential public and governmental purposes and not for purposes of private or corporate benefit and income, and such property and an authority shall be exempt from all taxes and special assessments of the city, the county, the State or any political subdivision thereof: Provided, however, that in lieu of such taxes or special assessments, an authority may agree to make payments to the city or the county or any such political subdivision for improvements, services and facilities furnished by such city, county, or political subdivision for the benefit of a housing project, but in no event shall such payments exceed the estimated cost to such city, county, or political subdivision of the improvements, services or facilities to be so furnished." PUBLIC REVENUE-A,d Valorem Tax-Intangible Tax Act Certain provisions of the Intangible Tax Act of 1953 are construed. December 17, 1953 Mr. W. Harvey Atkinson Director, Property Tax Division Department of Revenue You ask my opinion as to certain questions concerning Housing Bill No. 422 354, passed at the 1953 November-December session of the General Assembly of Georgia. (Ga. Laws 1953, Nov.-Dec. Sess., p. 379). In order to more clearly answer your questions I shall separately state each question and then give my answer. "Schedule B-Notes secured by real estate insured by Federal Housing Administration and notes covering loans made by Federal Savings & Loan Associations or State Building and Loan Associations. 1. Will the above Institutions be required to file Form 159 as of January 1, 1954 or in any future years, reporting unpaid balance due on notes executed prior to January 1, 1954 ?" The Federal Housing Administration is not required to file Form 159. Federal Savings and Loan Associations and State Building and Loan Associations are exempt from returning short term loans secured by real estate under part 1, section 12 of House Bill No. 354 and would not be required to file Form 159. Part 2, section 1 of the act provides for the tax returns to be made by federal savings and loan associations and state building and loan associations. These institutions would not be required to return long term notes on real estate executed prior to January 1, 1954; however, such institutions would be required to pay the fee provided under Section 4 of this act when recording a long term security note. "2. See under An Act beginning 'to provide for the distribution of taxes' to end: Does this apply to any long term notes or only to long term notes of building and loan or savings and loan associations and banks?" The provision "to provide for the distribution of taxes" in the caption of 3aid act refers to section 17 of the act which provides for distribution of taxes collected under sections 1 through 16 of part 1 of this act. "Schedule C-Real Estate Mortgage Notes 1. Should all mortgage notes secured by real estate, including security Jeeds on property located outside of the State of Georgia be returned on form No. 159 and taxed at the rate of 10c per $1,000 as of January 1, 1954 ?" All long term notes secured by real estate located in this state, executed on or after January 1, 1954 shall be taxed as provided in Section 4 of the act, by paying a fee to the clerk of the superior court at the time of recording the instrument. All persons owning long term security deeds secured by property located outside the state shall pay the fees provided in section 4, under section 10 of said act, which provides for making payment of the fees to the State Revenue Commissioner. All short term notes secured by real estate shall be taxed at the rate of 10c per $1,000 on January 1, 1954 and shall be returned on Form 159, except that those owners exempt by Part 2, Section 1, however, would not be required to make a return on Form 159. "2. Should all real estate mortgage notes (long or short term) executed or recorded in 1953 be returned on form No. 159 and subject to intangible taxes as of January 1, 1954 ?" All long term notes secured by real estate executed or recorded in 1953 or any prior year shall not be returned on Form 159, as it is provided in sections 13 and 14 of part 1 of the act that no taxes shall be paid on such notes. All short term notes secured by real estate executed or recorded in 1953 and not owned by those owners specifically exempt under part 2, section 1 of the act, shall be returned on Form No. 159 on their value as of January 1, 1954. "3. Should short term notes recorded in 1953 be subjected to intangible tax on form No. 159 beginning January 1, 1954 ?" All short term notes secured by real estate shall be subject to tax under 423 section 1(a) of part 1 of this act on January 1, 1954 and any subsequent years that they are held by the owner, except short term notes held by owners exempt under part 2, section 1 of the act. "4. Should all real estate mortgage notes executed, and returned on form No. 159 in prior years and where unpaid balance remains on January 1, 1954 be subjected to Intangible taxes as of January 1, 1954 ?" All short term notes secured by real estate shall be returned on Form 159 except where such notes are owned by persons exempt under part 2, section 1 of the act. Long term notes secured by real estate which have been returned in prior years shall not be subjected to intangible tax on January 1, 1954 and are not required to be returned on Form 159. This is provided by sections 13 and 14 of part 1 of the act. PUBLIC REVENUE-Ad Valorem Tax-Promissory Notes Payable on Demand Under House Bill 354, passed at the November-December, 1953 Session of the General Assembly, demand notes should be returned for taxation as short term promissory notes. December 21, 1953 Mr. W. Harvey Atkinson Director, Property Tax Unit State Department of Revenue You ask my opinion as to the following question: "How shall the Clerk of the Superior Court treat demand notes under House Bill No. 354 passed by the last meeting of the General Assembly?" In answering this question I assume that these demand notes are secured by real estate and are demand notes that fit the definition as provided in Section 14-207 of the 1933 Code of Georgia. As a demand note is payable at any time after it is created, upon demand by the holder, it is my opinion that such notes would be short term notes as defined by Section 3 of the act and would be taxable at the rate of ten cents on each thousand dollars of the fair market value as provided in section 1 of this act. The demand notes would be returnable by the holder on Form 157 to the state revenue commissioner and as such the clerks of the superior courts would not be effected by the demand notes. PUBLIC REVENUE-Intangible Tax (Unofficial) Under the facts as stated, double taxation did not result. September 25, 1953 Mr. E. A. Warner Senator Richard B. Russell has referred to me for reply your letter to him of September 18, 1953. You state that you have a few outstanding mortgages on property which are payable in monthly installments and that you pay intangible tax on these mortgages. You state further that such mortgages are being collected through the savings department of a local bank and a building and loan association and that such monies collected are left there to accumulate interest. You state that the taxing officials have held that you are. liable for intangible taxes on the money deposited in your savings account and your building and loan account. You ask if it is illegal for the State of Georgia to double tax intangible property and to explain the discrepancy. 424 Under the set of facts outlined in your letter there is no double taxation. Each year you are liable for an intangibles tax on the uncollected portion of the mortgages as of January 1. You are also liable for an intangibles tax at a similar rate on all money as of January 1. For example, if you should have a thousand dollar mortgage on property as of January 1, 1952 upon which no payment had been made, you would be liable for an intangibles tax on the thousand dollar mortgage. However, if on January 1, 1953 payments had been made on the mortgage so that its fair market value was then $900 and you had in your savings account the $100 in cash that had been paid, your intangibles tax on the mortgage would be on the $900 and your intangibles tax on the money would be on the $100. In other words, the taxes imposed upon the fair market value of all intangibles does not result in double taxation. PUBLIC REVENUE-Ad Valorem Taxation-Leasehold Interests (Unofficial) While property owned by the United States Government is not subject to any ad valorem taxation, any such property which has been leased to an individual for private purposes is subject to ad valorem taxation as to the latter's interest. May 26, 1953 Honorable 0. B. Folsom In your letter you state, "I am informed by the Union County Tax Assessor and Receiver's Office of their intention to tax 'summer homes' built in the Chattahoochee National Forest at Lake Winnfield Scott, Georgia. "Will you please inform me if, under the circumstances, it is appropriate for Union County to tax property located within a National Forest boundary. It is my understanding that this property is not taxable by the State of Georgia and further that the proceeds from the sale of timber, mineral rights, and small home leases is prorated to the various counties wherein the Forest is located. It is also my understanding that personal property is taxable only by the County wherein a person maintains legal residence. "It will be greatly appreciated if your opinion concerning this matter may be received at an early date." Property owned by the United States Government is not subject to State, county and municipal taxation. However, property owned by the Government which has been leased to an individual for private purposes would ordinarily be subject to State, county and municipal taxation. Section 92-104 of the Georgia Code, Annotated is as follows: "All persons owning any mineral or timber interests, or any other interest in or claim to land less than the fee shall 1eturn the same for taxation and pay taxes on the same as on other property; and any person failing to comply with the requirements of this section shall be proceeded against as a defaulting taxpayer." The Supreme Court of our State in the case of Henry Grady Hotel Co. v. The City of Atlanta, 162 Ga. 818, held that the leasehold of the Henry Grady Hotel Company was subject to taxation by the City of Atlanta, notwithstanding the fact that the title of the property was in the State of Georgia. 425 In a very recent case, Judge Guess, of the Stone Mountain Circuit, held that the Conley Housing Corporation was subject to ad valorem taxes on their leasehold which covered property leased by the Housing Corporation from the United States Government for the purpose of erecting apartment houses thereon. Although your letter does not specifically state, I assume that the taxing authorities of Union County are proposing to tax the leasehold interest of property owners who have erected private homes on government property under the terms of the lease granted to them by the Government and if my understanding is correct, I am of the opinion that the leasehold interest would be subject to ad valorem taxes in Union County. PUBLIC REVENUE-Ad Valorem Taxation of MitWral Interests (Unofficial) (1) This state has no tax on mineral interests which is dependent upon the producing or non-producing element of such interest, but mineral interests are taxable ad valorem as other property. (2) The income from mineral deposits is taxable as other income and the income tax regulations provide for a depletion allowance. September 3, 1953 Mr. W. G. Phillips You ask if this State has a tax on producing and non-producing mineral interests. This State does not have a tax on mineral interests which is made dependent on the producing or non producing element of such interest. However, mineral interests are taxed ad valorem as other property by virtue of the provisions contained in Section 92-104 of the Code of Georgia of 1933, which reads as follows: "All persons owning any mineral or timber interests, or any other interest in or claim to land less than the fee shall return the same for taxation and pay taxes on the same as on other property; and any person failing to comply with the requirements of this section shall be proceeded against as a defaulting taxpayer." This State also has a State income tax and the income derived from mineral deposits is taxable, Income tax regulations provide \or depletion allowance in the following terms: "Depletion of natural resources such as timber, coal, oil, gas, minerals, stone, gravel and clay deposits is deductible on the same basis as is allowed for Federal income tax purposes." PUBLIC REVENUE-Ad Valorem Taxation-Motor Vehicles (Unofficial) A resident of the State of Georgia is required to pay ad valorem taxes upon motor vehicles owned by him during the time that the taxpayer was in the active service of the United States Navy and did not physically reside in Georgia. Mr. Ralph B. Pettey May 26, 1953 In your letter you state that you have received a notice of past due State taxes from the T.ax Collector in Hawkinsville, Georgia, for 1951 and 1952 taxes on your automobile. You state that during this period you were in active service in the U. S. Navy and did not reside in Georgia; however, you purchased Georgia license plates for your automobile although the car was not in Georgia. You ask 426 that I investigate this matter and notify you whether or not the entire amount of the tax claim is valid and what portion of the claim, if any, you will be required to pay. I understand from your letter that you are a citizen of the State of Georgia and at the time you were recalled by the Naval Reserve you were a resident of Hawkinsville, Pulaski County, Georgia. The following Georgia statutes are applicable in determining the answer to the question propounded in your letter: "92-101 (Ga. Code Annotated).-All real and personal property, whether owned by individuals or corporations, resident or non-resident, shall be liable to taxation, except as otherwise provided by law." "92-102. For the purposes of taxation, 'personal property' shall be construed to include goods, chattels, moneys, credits and effects, WHATSOEVER THEY MAY BE; ships, boats, and vessels, whether at home or abroad, ... (Capitals ours) The Supreme Court of the United States recently rendered a decision in the case of Claiborne Dameron v. A. S. Broadhead, Manager of Revenue and Ex-Officio Treasurer of the City and County of Denver (21 U. S. Law Week 4,294, Apr. 7, 1953) construing the Soldiers' and Sailors' Relief Act. In this case the Supreme Court held that a citizen and resident of the State of Louisiana who was inducted into the armed services and during the period of his service was stationed in the State of Colorado, would not be subject to the payment of personal property taxes in the State of Colorado. This decision was based upon the construction of Section 514 of the Soldiers' and Sailors' Relief Act as amended in 1942 and later amended in 1944, which amendments are in substance as follows: "(1) For the purposes of taxation in respect of any person, or of his property, income or gross income, by any State, territory, possession, or political subdivision of any of the foregoing, or by the District of Columbia, such person shall not be deemed to have lost a residence or domicile in any State, territory, possession, or political subdivision of any of the foregoing, or in the District of Columbia, solely by reason of being absent therefrom in compliance with military or naval orders, 3r to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, while, and solely by reason of being so absent." The 1944 Amendment thereto first concerned personal property taxes. It stated: "Personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession, or political subdivision, or district." In view of the foregoing statutes and court decision, I am of the opinion that your personal property, which of course includes your automobile, is subject to Georgia State, county and municipal taxation. 427 PUBLIC REVENUE-Ad Valorem Tax of Motor Vehicles (Unofficial) Automobiles shipped into this state after the first day of January of any year are not subject to ad valorem taxes for that year; the person owning such car on January first of any year is liable for the ad valorem taxes thereon. April 28, 1953 Honorable R. P. Stripling In your letter you state: "We are writing you to find out what to do about assessing 1953 automobiles that have been bought since January 1, 1953, for the purpose of taxation for the year 1953. "If these automobiles were in the state the first day of January, 1953, or were shipped in after the first of January, 1953, we want to know who is responsible for the tax.'' Section 92-101 of the 1933 Annotated Code of Georgia provides: "All real and personal property, whether owned by individuals or corporations, resident or nonresident, shall be liable to taxation, except as otherwise provided by law.'' Section 92-6202 of the 1933 Annotated Code of Georgia provides: "The individual returns made by taxpayers to the tax receiver shall be for property held and subject to taxation on the first day of January, next preceding." You will observe from the two Code Sections quoted herein that all property in the State of Georgia, unless specifically exempted by law, is subject to taxation and that the date on which the tax liability accrues is January 1 next preceding the filing of the tax return. It therefore follows that the person who owned an automobile on January 1, 1953 should return and pay taxes on the automobile. If automobiles were shipped into the State of Georgia after the first day of January, 1953, they would of course not be subject to ad valorem taxes for the year 1953 since no one in the State would have ownt>d them on that date. PUBLIC REVENUE-Property Tax Liability of Servicemen (1) The purchase of a Georgia license tag by a member of the Armed Forces in Georgia does not necessarily render such person liable for Georgia property taxes. Previous opinions overruled. (2) If, however, such person is domiciled in Georgia, the mere fact that he is a member of the Armed Forces does not relieve him of Georgia property taxes. October 27, 1953 Honorable W. Harvey Atkinson Director, Property Tax Division You request that I review my previous opmwns dated November 26, 1948 (Opinions of the Attorney General, 1948-49, p. 359) and December 27, 1948 (Opinions of the Attorney General, 1948-49, p. 361, 362), in view of the recent decision of the United States Supreme Court in the case of Dameron v. Brodhead, 345 U. S. 322, 21 LW 4294. These two 1948 opinions dealt with the construction of Section 514 of the Soldier's and Sailors' Relief Act (50 U.S.C. App., Sec 501 et seq.) and particularly with the question as to what jurisdiction a serviceman chooses to be his domicile by purchasing a Georgia license plate. 428 My view of the matter at that time was controlled by the statements of the legislative history of the Soldiers' and Sailors' Relief Act (House Report No. 2198, 77th Cong. 2nd Sess. p. 6) and I held, therefore, that the Congressional intent and design was to prevent multiple state taxation and consequently the purchase of a Georgia license plate by a member of the armed services amounted to choosing Georgia as his domicile. In effect, this earlier view expressed by me was the basis of the dissenting opinion in the Dameron case. At this time, in view of the announcement of the Supreme Court of the United States in the Dameron case, I am compelled to overrule the two cited earlier opinions. The court in the Dameron case, in dealing with the statements of the legislative history that the provision in the Soldiers' and Sailors' Relief Act was designed to prevent multiple State taxation, had this to say: "The short answer to the argument that it therefore only applies where multiple taxation is a real possibility is that the plain words of the statute do not say so. In fact, they are much broader: 'that personal property shall not be deemed to be located or present in or to have a situs for taxation' in the state of temporary presence in any case. There is no suggestion that the state of original residence must have imposed a property tax. Since the language of the section does not establish a condition to its application, we would not be justified in doing so. . . . In fact though the evils of potential multiple taxation may have given rise to this provision, Congress appears to have chosen the broader technique of the statute carefully, freeing servicemen from both income and property taxes imposed by any state by virtue of their presence there as a result of military orders. It saved the sole right of taxation to the state of original residence whether or not that state exercised the right. . . . " It is my opinion, therefore, that the mere presence of a person in this state by virtue of military orders does not render him liable for payment of property or income taxes. The Soldiers' and Sailors' Civil Relief Act prohibits this state from requiring such a person to purchase a Georgia license tag for his automobile if he has a valid license of the state, territory, possession or District of Columbia in which such person is a permanent resident and in which he is domiciled. As late as September 21, 1953, in an opinion to the Honorable W. L. Joiner, Assistant Director, Motor Vehicle License Unit, I have held that where ownership of a vehicle is established to the satisfaction of the State Revenue Commissioner and all other requirements of law have been complied with, it is the duty of the Commissioner to sell the applicant a license tag. Therefore, if a serviceman buys a Georgia license tag for his automobile it does not necessarily indicate that he has chosen Georgia as his state of domicile and it matters not whether the state of his domicile has imposed or collected a property tax upon or from him. The application blank used by the Motor Vehicle License Unit has this question on its face: "Are you a resident of Georgia?" This application blank is required to be sworn to but an affirmative answer to this question does not necessarily answer the question of whether or not the serviceman is domiciled in Georgia. It would, of course, be of some value in determining domicile but on the other hand it would not foreclose that question. In summary, it is my opinion that the purchase of a Georgia license tag by a member of the armed forces in Georgia does not necessarily render such person liable for Georgia property taxes. If, however, such person is domiciled in Georgia, the mere fact that he is a member of the armed forces does J1ot relieve him of Georgia property taxes. 429 PUBLIC REVENUE-Taxability of State Building Authority Bonds The interest on bonds issued by the different building authorities referred to are exempt from taxation. November 5, 1953 Honorable Fielding L. Dillard Director, Income Tax Unit You request my opinion as to the taxability of the interest on bonds of authorities created by the State of Georgia. You give as an example of the authorities you have in mind, the "Port Authority" and the "School Building Authority." I have examined the statutes providing for the State Hospital Authority (Ga. Laws 1939, p. 144), University System Building Authority (Ga, Laws 1949, p. 1009), State Office Building Authority (Ga. Laws 1951, p. 699), State School Building Authority (Ga..Laws 1951, p. 241), Vocational Trade School Building Authority (Ga. Laws 1951, p. 132), State School Building Authority for the Deaf and Blind (Ga. Laws 1951, p. 637), State Ports Authority (Ga. Laws 1945, p. 464), State Toll Bridge Authority (Ga. Laws 1953, p. 302), and State Bridge Building Authority (Ga. Laws 1953, p. 626). In all these acts of the General Assembly there appear two sections which are almost identical and which have the effect of exempting from taxation the interest on the bonds issued by them. In order to avoid repetition, and since similar sections appear in all authority acts herein referred to, I call your attention to Sections 18 and 30 of the State Bridge Building Authority, supra, which read as follows: Section 18. All revenue bonds issued under the provisions of this Act shall have and are hereby declared to have all the qualities and incidents of negotiable instruments under the negotiable instrument law of this State. Such bonds and the income thereof shall be exempt from all taxation within the State." "Section 30. It is hereby found, determined and declared that the creation of the Authority and the carrying out of its corporate purposes is in all respects :for the benefit of the people of this State, and that the Authority is an institution of purely public charity and will be performing an essential governmental function in the exercise of the power conferred upon it by this Act and this State covenants with the holders of the bonds that the Authority shall be required to pay no taxes or assessments upon any of the property acquired or leased by it under its jurisdiction, control, possessions or supervision or upon its activities in the operation or maintenance of the projects erected by it or any fees, rental or other charges for the use of such projects or other income received by the Authority and that the bonds of the Authority, their transfer, and the income therefrom shall at all times be exempt from taxation from within the State." I therefore conclude that the interest on these bonds is not subject to taxation. PUBLIC REVENUE-Taxation of Baled Cotton (Unofficial) Baled cotton stored in a warehouse and owned by a warehouseman on January 1 is subject to ad valorem taxation. Mr. C. D. Webb September 9, 1953 You ask whether or not baled cotton in a warehouse and owned outright by the warehouseman on January 1, is taxable ad valorem. Article VII, Section I, Paragraph IV of the Constitution of the State of Georgia of 1945 provides in part: 430 "The General Assembly shall further have power to exempt from taxation farm products including baled cotton grown in this state and remaining in the hands of the producer, but not longer than for the year next after their production." A General Assembly has exercised the power granted in this constitutional provision in Section 92-201, Georgia Code Annotated. The exemption granted baled cotton is restricted in two ways: first, it must remain in the hands of the producer; and second, the exemption shall not extend longer than for the year next after their production. Therefore, under the facts as outlined in your letter, the warehouseman, unless he is the producer, is not exempt. PUBLIC REVENUE-Ad Valorem Taxation of "Wild Lands" (Unofficial) 1. "Wild lands" are lands in the state of nature, as distinguished from improved or cultivated lands. 2. The mere fact that a known owner fails to make a return for taxes does not make his lands "wild lands." 3. Vacant lands which are being turpentined are not "wild lands." Honorable C. V. Stanton March 16, 1953 I wish to acknowledge receipt of your letter of March 7, 1953 in which you propound the following questions: (1) "What is considered 'wild land'?" The term "wild land" is defined in Black's Law Dictionary as: "Land in a state of nature, as distinguished from improved or cultivated land." The Georgia Code does not give a definition of "wild land." There are, however, several sections of the Code with reference to the taxation of wild lands. The Supreme Court of our State in the case of Brown v. Powell, 85 Ga., p. 603, stated: "Lands in this State are divided into two classes, improved or farming lands, and wild or unimproved lands, . . " (2) "If the owner is known and does or does not make a return for taxes, is this considered 'wild land'?" No. The fact that the land was or was not returned for taxation would not make the lands in question wild. Section 92-6211 of the 1933 Annotated Code of Georgia provides the manner in which wild lands may be returned for taxation: "The owner of any wild lots or tracts of land through which county lines may run shall be allowed to return said lots or tracts of land in either county containing any portion of said lots or tracts of land. The tax collector, upon receipt of any return of wild lands, shall immediately transmit his receipt for such return to the person making same." Section 92-7403 of the 1933 Annotated Code of Georgia provides for the sale of wild lands for taxes where the lands have not been returned for taxation. This section is as follows: "It shall be the duty of the tax collector, when taxes on wild lands are not paid in the time provided by law, to issue executions against such lands, and after due advertisement, as prescribed by law, to sell said lands for payment of taxes." 3. "If the land is vacant but is being turpentined or other forest products 431 are being gathered from it, can it be considered 'wild land'?" No. In my opinion, based on the case herein quoted, lands being used for turpentine and other forestry products come within the definition of improved or farm lands. PUBLIC REVENUE-Taxation of Wild Lands (Unofficial) In determining whether or not land sought to be sold under a tax execution should be sold as wild land or as improved land, the manner in which the property had been sold and had been returned for taxes in the past would be relevant. Mr. C. V. Stanton August 20, 1953 In your letter you propound several questions relating to the assessment of wild lands for taxes and the manner in which the said wild land should be sold. In my letter to you of March 16, 1953, I stated that "wild land" had been defined to be "Land in the state of nature as distinguished from improved or cultivated land." The Georgia Code does not give a definition of wild land. However, the Supreme Court of our State in the case of Brown v. Powell, 85 Ga. 603 stated: "Lands in this State are divided into two classes: improved or farm lands and wild or unimproved lands." You asked the question as to whether or not there is any wild land left in Georgia. I have no way of knowing the number of acres of wild land in the State, however, I assume that there is considerable property in the State which would be classified as wild land. Code Section 92-8103 referred to in your letter refers not to wild lands, but refers to prope;rty which has not been returned for taxation. You state in your letter that you have in mind selling property which was sold a number of years ago to people who returned it for a number of years, but have abandoned it and have failed to file tax returns on the same. It occurs to me that in the sale of these particular tracts of land, it would be very material in determining whether or not they are to be sold as wild lands, to ascertain whether or not they purchased the same as wild land and whether or not they returned the property as wild land during the period in which they did make returns. If this is true and there has been no change in the property, it appears to me that it will be proper to classify the land in question as wild land. The Supreme Court of our State in the case of Brown v. Powell, 85 Ga. page 603, held: "Different rules prevail in returning improved lands and wild lands for taxation; different rules, under the statute, in selling improved lands and wild lands for non-payment of taxes on the same; and different rules as to the time of redemption, and the amount of interest which the owner is required to pay in order to redeem; and there are other differences which it is unnecessary to mention here. So it seems that the policy of the State is to keep improved and wild lands separate in its scheme of taxation. It divides them into two classes, improved and wild, and requires that they shall be thus returned or listed for taxation. This is done, we suppose, for the protection of the State and the landowner." Our courts have held that where lands are sold as wild lands which were under cultivation or had improvements thereon, the sale was void; in other words, wild 432 lands must be sold as such and improved lands sold as improved lands, otherwise the sale is void. PUBLIC REVENUE-Corporation Tax-Carryover Under Section 92-3109 (m) of the Georgia Code Annotated Supplement, a corporation doing some business in this state is entitled to carry over or carry back all of its net operating loss to the gross income for the year for which the deduction is allowable, and is not required to apportion its deduction according to the amount of business done in this state alone. Mr. Lee S. Redford Assistant Director, Income Tax Unit June 17, 1953 I acknowledge receipt of your letter of June 9, 1953, in which you request an answer to the following question: Where a corporation is required to file an income tax return under Sections 92-3113, 92-3114, 92-3115 and 92-3116 and is permitted under Section 92-3109(m) to carry over or carry back a net operating loss, (1) should the total net operating loss of the corporation be carried over or carried back against the total net income of the corporation for the year for which the deduction is allowable; or (2) should the net operating loss apportionable to the State of Georgia be carried over or carried back against the net income of the corporation apportionable to the State of Georgia for the year for which the deduction is allowable? In examining subsection (m) of Section 92-3109 of the 1933 Code of Georgia, as amended, it is found that subsection (m) provides for the carrying over or carrying back of the net operating loss to the gross income of certain preceding or succeeding taxable years. There is no reference in this entire sub-section to the apportionable net operating loss or the apportionable net income as provided under Section 92-3113 of the 1933 Code of Georgia, as amended. In looking at subsection (m) alone, it cannot be contemplated that the legislature intended to say net operating loss or net income as apportionable to the State of Georgia but rather it must be concluded that the legislature meant the entire net operating loss and entire net income of a corporation doing business within and without this State. Further aid is given to this theory by looking to the object of the carryover or carry-back net operating loss as provided under subsection (m). Under the theory of annual taxation a corporation would be unable to carry over or carry back losses. However, to better reflect business and trade, the theory of carry-over and carry-back is incorporated into the taxation laws. If this theory is to be applied to its full meaning, the trade or business must be taken as a whole in allowing losses and must not be segmented to the apportionment doctrine of this State. By reading Sections (a), (b), (c), (d) and (e) of subsection (m) of Section 92-3109, it must be concluded that these sections were enacted to apply to the entire income of a corporation doing business within and without this State, and not to apply to the proportional apportionment of income to this State under Section 92-3113. It is my opinion that where a corporation is doing business within and without this State, the total net operating loss of the corporation should be carried over or carried back against the total net income of the corporation for the year for which the deduction is allowable. 433 PUBLIC REVENUE-Corporation Tax A credit bureau incorporated under the laws of this state for the purpose of collecting accounts for its members is not exempt from the corporation tax laws of this state as being a corporation not organized for pecuniary gain or profit. Honorable W. Harvey Atkinson Director, Property Tax Division Department of Revenue March 19, 1953 I wish to acknowledge receipt of your letter of ,March 3, 1953 to which you attached a communication from Mr. Carlton W. Binns, attorney for the Physicians and Dentists Credit Bureau, Inc. Mr. Binns contends in his letter that Physicians and Dentists Credit Bureau, Inc. is not subject to payment of corporation tax as provided in Section 92-2401 of the Code of Georgia, which J::eads in part as follows: "All corporations incorporated under the laws of Georgia, except those not organized for pecuniary gain or profit, and domesticated foreign corporations, in addition to all other taxes now required of them by law, are hereby required to pay each year an annual license or occupation tax as specified in the following scale: ... " Mr. Binns did not attach a copy of his company's charter to his letter. However, he stated that he based his contention of tax exemption on the premise that the corporation in question is not organized for pecuniary gain or profit. It is also noted from his letter that " ... the purpose and object of the corporation is not direct pecuniary gain to any of the members thereof, but its purpose is to provide mutual aid and protection to its members and to that end it is the pui:pose of the corporation to act as agent for its members in the collection of accounts and notes receivable and other obligations owing to its members, and making adjustments, compromises and settlements of claims held by its members against others; and for the further purpose of furnishing credit information and reports to its members .. " In order for a corporation to be organized for pecuniary gain, the pecunia~y gain does not necessarily have to be direct. The members profit indirectly in that the corporation acts as a collecting agency and performs the general functims of a credit bureau to its members. It certainly could not be ccntended that the corporation was organized for educational or charitable purposes as its sole objectives are to render valuable services to its members and in my opinion these valuable services to members, such as collecting accounts, rendering credit iniormation, etc. clearly bring the corporation within the provisioJiS of Code Section 92-2401. 434 PUBLIC REVENUE-Corporation Income Tax A company which files its income tax return under Section 92-3114 and which return is accepted by the Commissioner of Revenue, although no express consent was given by the latter permitting the filing under this section, may nevertheless within the statute of limitations amend its return by filing under Section 92-3113 and procure any refund which it may be entitled to under said section. December 10, 1953 Mr. Fielding Dillard Director, Income Tax Unit Department of Revenue I am in receipt of your letter of July 24 relative to a claim for refund made by the Pacolet Manufacturing Company for the years 1950 and 1951. The question in this matter is: Where a taxpayer files returns under Section 92-3114 of the Code without having received permission from the Commissioner, may he adjust his tax to conform to Section 92-3113 within the time of the statute of limitations? Pacolet Manufacturing Company filed its returns for the years 1950 anrl 1951 under Section 92-3114. Prior to this time they had also filed under this same section without asking for or receiving permission of the commissioner as required by the statute. After filing returns for the two years, 1950 and 1951, the taxpayer amended its returns for these years in March, 1953 so as to conform to the statutory formula provided under Section 92-3113 and makes claim for refund for the difference in taxes under these two sections. Section 92-3113 provides a statutory formula for the computing of taxes of all corporations doing business within and without this State and Section 92-3114 provides: "92-3114. Returns based upon books of account.-If any corporation or nonresident shall employ in its books of account a detailed allocation of receipts and expenditures which reflects more clearly than the process or formulas prescribed by this law the income attributable to the trade or business within the State, application for permission to base the return upon the taxpayer's books of account shall be considered by the Commissior. Application shall be made at least 60 days prior to the last day on which s11ch taxpayer's return is to be filed, and shall be accompanied by a full and com}lete explanation of the method employed." This latter section may only be applied by the taxpayer upon approval by the Commissioner. of Revenue. From the above section it must be concluded that although a taxpayer may file under Section 92-3114 without permission, thi.s does not bind the Commissioner to accept it and he may make an assessmmt within a three-year period after the tax return is filed under Section 92-3113. The taxpayer only has the right to file under Section 92-3113 and has no choict of filing under the suceeeding section. Therefore, it would seem that where the wmmissioner is not estopped from assessing a taxpayer who has filed under Secbm 92-3114 as to tax under Section 92-3113, an estoppel could not work against tre taxpayer. Normally where a taxpayer makes an election